Horton v. . Horton , 186 N.C. 332 ( 1923 )

CLARK, C. J., dissenting. The court granted the application, the judgment entered being as follows:

"This matter coming on to be heard before me, and, after hearing the evidence offered by both sides, and the argument of counsel, the court finds the following facts:

"That the plaintiff and defendant were married to each other, as alleged in the pleading; that thereafter a separation took place, and they are now living separate and apart from each other; that the plaintiff left the home of her husband because of treatment by him which made it so that she could not remain longer in the home; that she has brought suit against the defendant for a divorce from bed and board, and brought the suit in Durham County, while her husband resides in Wake County, as she did before the separation.

"Motion is made by the defendant to order the case removed for trial to the Superior Court of Wake County; that motion is denied, the court finding as a fact, at the time she brought her action she was a resident of Durham County. The court further finds that, although she left her husband's home, she was caused to do so by reason of treatment accorded her and statements made to her by her husband — among others, that if she would leave and get a divorce from him he would bear the expense of same and would pay her a sum of money; that her health was bad, causing her to go to a hospital, where she stayed for a period of time, her husband paying her no attention and refusing to pay bill for same; that her husband owns valuable land and other property, while she has no property.

"It is ordered that the defendant pay to the plaintiff the sum of $50 per month, the first payment to be made on the 5th day of July, 1923, and that the sum of $50 be paid to her by him each thirty days after that date.

"It is further ordered that the defendant pay to the plaintiff's attorney as counsel fees the sum of $150, on or before 15 July, 1923.

"W. M. Bond, Judge."

Defendant excepted and appealed, assigning for error that there was not sufficient finding of facts to justify an award of alimony and counsel fees. Our statute (C. S., sec. 1666) provides that alimony pendente lite may be allowed to a wife seeking divorce whenever she sets forth in her complaint such facts as will uphold a judgment for relief, and where the judge, on the hearing of the application, shall find these facts to be true, and shall find further that the wife has not sufficient means for her subsistence and to defray the necessary and proper expenses of the suit. Speaking to this question in Easeley v. Easeley, 173 N.C. 531, the Court said: "The statute controlling the question (Revisal, sec. 1566) provides that on a hearing of this character alimony should be allowed when plaintiff shall, in her complaint, set forth such facts ``which, upon application for alimony, shall be found by the judge to be true and to entitle her to the relief demanded in the complaint,' and in numerous decisions construing the statute it has been held that the judge must find the essential and issuable facts and set them out in detail, so that this Court can determine from the facts as found whether the order for alimony can be upheld as the correct legal conclusion." Citing Garsed v. Garsed,170 N.C. 672; Moody v. Moody, 118 N.C. 926; Lassiter v. Lassiter,92 N.C. 129; Morris v. Morris, 89 N.C. 113.

Under the interpretation of the statute approved in these and other like decisions, there are no sufficient findings of facts by the court below to sustain an award of alimony in the cause. True, his Honor, in the judgment, finds, among other things, "That although she left her husband's home, she was caused to do so by reason of treatment accorded her and statements made to her by her husband — among others, that if she would leave and get a divorce from him he would bear the expense of same and pay her a sum of money"; but a careful examination of the statement will disclose that, in so far as it purports to be a finding of abandonment on the part of the husband, it is only a general and inconclusive estimate on the part of his Honor as to the conditions presented, and the only fact determined is that at one time "he offered to pay for a divorce if she would leave and obtain one." According to defendant's evidence, this was on one occasion only, and in reply to a threat of the wife to leave him; but in any event, standing alone, it is entirely insufficient to justify a separation of a husband and a wife. The further finding as to defendant's refusal to pay the hospital fees at Durham, and his inattention while she was there — this took place after plaintiff had left defendant's home — and although generally pertinent to the inquiry, must take its complexion largely from the correct determination of the principal fact, whether plaintiff was justified in leaving her husband's home. While abandonment is one of the statutory grounds for a divorce from bed and board, and it is true, as plaintiff contends, that if a husband, by continued and persistent cruelty or neglect, forces his wife to leave him or his home, he may well be held guilty of abandonment. Highv. Bailey, 107 N.C. 71; Setzer v. Setzer, 128 N.C. 170. It is equally true that when the wife voluntarily leaves the husband's home without good cause or sufficient excuse, this charge and its consequences may not be imputed to him.

On the record as now presented, we are of opinion that defendant's objection must be sustained, and this will be certified, that the order allowing alimony and counsel fees be set aside without prejudice, and that the matter be further proceeded with as plaintiff may be advised.

Reversed.