Sguros v. Sguros , 252 N.C. 408 ( 1960 )

114 S.E.2d 79 (1960) 252 N.C. 408

Alice B. SGUROS
v.
Peter L. SGUROS.

No. 381.

Supreme Court of North Carolina.

April 27, 1960.

Clyde C. Randolph, Jr., Keith Y. Sharpe, Winston Salem, for defendant, appellant.

Deal, Hutchins and Minor, by Edwin T. Pullen, Winston Salem, for plaintiff, appellee.

HIGGINS, Justice.

The complaint states a cause of action based on abandonment under G.S. § 50-16. Hence it is not necessary to allege with particularity acts and conduct as required when the cause is based on such indignities to the person as to render the condition intolerable and life burdensome. See Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420. The evidence before the court is sufficient to sustain the court's finding of abandonment and the suitability of the plaintiff to have custody of the children. Likewise the evidence is sufficient to entitle the plaintiff to an award of alimony pendente lite and counsel fees. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867.

In fixing the amount to be allotted as subsistence pending trial on the merits, the court should take into account the estate and earnings of the husband as well as the estate and earnings of the wife. Herndon v. Herndon, 248 N.C. 248, 102 S.E.2d 862; Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. However, in fixing the alimony payments in this case the court apparently did so on the basis of the defendant's annual income of $11,800 at the time the action was instituted rather than upon the annual income of $8,000 at the time the order was signed.

At the time the action was instituted the defendant, who "has a Ph.D. degree in Bacteriology," was employed in the research department of Reynolds Tobacco Company at a salary of $10,740 per year and a further salary of $1,000 per year from the Naval Reserve unit to which he belonged. Subsequently he resigned from Reynolds, retired from the Naval unit, and accepted an associate professorship at Miami University in Florida at a salary of $8,000 per year.

According to his affidavit his opportunities for advancement in his special field are greater as a university teacher than as a tobacco laboratory technician. There is neither allegation nor evidence, nor finding his change of positions was otherwise than for the reason he assigns. Under the circumstances here disclosed, we hold he had the right, so long as he acted in good faith, to accept the professorship at Miami even though at a reduction in salary. The court should have fixed the monthly payments on the basis of a salary of $8,000. If, as the defendant contends, the allowance was made on the basis of conditions no longer existing, he may, by motion in the cause, show how he is prejudiced by the order now in effect and have it reconsidered.

The parties have resorted to the court for settlement of their differences. It is the policy of the law to be impartial with respect to the merits of the controversy. However, the law recognizes the responsibility of the father to support his children. It likewise recognizes the responsibility of the husband, according to his means, to provide subsistence and counsel fees for his wife who has a cause of action against him and who is financially unable to provide them for herself. If the wife is the plaintiff, her remedy pending final decision is provided by G.S. §§ 50-15, 50-16. If she is the defendant, her remedy is under the common law. Branon v. Branon, 247 N.C. 77, 100 S.E.2d 209.

After the trial judge has determined an allowance is justified, the amount is left to his sound judicial discretion, not subject to review except for abuse or error of law. We hold it was proper in this case to award exclusive possession of the home, the furnishings, and the family automobile to the wife, and to require the defendant to make payments on the mortgage in order that the plaintiff and the children may have a place to live. Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555.

The court ordered the defendant to pay the plaintiff $200 per month—$113.12 of which she was directed to pay on the mortgage. Taking into account her salary and the $86.88 available to her after the payment on the mortgage, she has for her own use more than $350 per month. However, the order attempts to give to the wife a lien on the home for the additional $113.12 per month paid by the defendant. A pendente lite order is intended to go no further than provide subsistence and counsel fees pending the litigation. It cannot set up a savings account in favor of the plaintiff. Such is not the purpose and cannot be made the effect of an order. The order is modified by striking that part which attempts to create a lien. Otherwise it was within the discretionary power of the judge.

Modified and Affirmed.