Deal v. Deal , 259 N.C. 489 ( 1963 )

131 S.E.2d 24 (1963) 259 N.C. 489

Mary Carter DEAL
v.
Robert A. DEAL.

No. 310.

Supreme Court of North Carolina.

May 22, 1963.

Jones, Reed & Griffin, Kinston, for plaintiff.

C E. Gerrans, Kinston, for defendant.

MOORE, Justice.

Plaintiff assigns as error, (1) the failure of the court to pass "upon the issue as to whether defendant * * * abandoned the plaintiff" without fault on her part, (2) failure of the court to pass "upon the issue as to whether the conduct of defendant * * * offered such indignities to the person of plaintiff as to render her condition intolerable and life burdensome," and (3) the entering of the order.

As explained below, we think the court did pass on the issues mentioned in the first and second assignment of error. However, the court made no specific findings of fact with respect thereto, and no findings of fact were requested by plaintiff. "On motion for alimony pendente lite made in an action by the wife against the husband pursuant to G.S. § 50-16, the judge is not required to find the facts as a basis for an award of alimony except when the adultery of the wife is pleaded in bar." Creech v. Creech, 256 N.C. 356, 358, 123 S.E.2d 793, 794; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436. And this rule applies where the motion for alimony pendente lite is denied. Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. The discretion given to the trial judge is so wide that he is not required to make formal findings of fact upon such a motion, unless the charge of adultery is made against the wife. Phillips v. Phillips, 223 N.C. 276, 25 S.E.2d 848. See also Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283.

The principal question argued by plaintiff is whether the court may deny the motion for alimony pendente lite upon the mere finding that defendant is providing adequate support for his wife. The question is raised upon the exception to the entry of the order denying the motion. There is a conflict of authority as to whether, in a case in which a husband has abandoned his wife, allegations and proof that he is providing her adequate support is a defense to her motion for alimony pendente lite. Many courts hold that it is a good defense. 27A C.J.S. Divorce § 209c, p. 917. The theory of these courts is that pendente lite allowances are based on necessity, and where no necessity exists there is no reason for an order of temporary alimony. Friedman v. Friedman, 5 A.D.2d 864,171 N.Y.S.2d 695 (1958). Other courts take a contrary view. They reason that the wife is entitled to the security of a court order fixing legal responsibility, even if the husband is voluntarily providing adequate support, for that it will avoid bickering and confusion between the parties, assure the continuance of the support by the husband, and permit the wife to decide what her needs are and the kind and quality of the articles she must accept. See Pedersen v. Pedersen, 71 U.S.App.D.C. 26, 107 F.2d 227 (1939). The decisions of the North Carolina Court are not entirely consistent, but the trend seems to be in the direction of the latter view. Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745.

However, it will be observed that in Thurston, Butler and all other cases, in which it has been held that the wife is entitled to the security of a court order despite the fact that her husband is providing adequate support, there were definite findings that the husband had abandoned the wife or was guilty of conduct which would entitle her to a divorce absolute or from bed and board. A wife is not entitled to an order for support pendente lite merely because she has instituted an action and alleged grounds for divorce or alimony. The applicable statute, G.S. 50-16, provides that "If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action * * *." The statute provides two remedies, one for alimony without divorce, and another for subsistence and counsel fees pending trial and final disposition of the issues involved. Mercer v. Mercer, 253 N. C. 164, 116 S.E.2d 443. "The existence of grounds for divorce is a prerequisite to any allowance to the wife under G.S. § 50-16. To warrant an allowance pendente lite she must allege and prove a cause of action for divorce." Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156; Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384. And plaintiff must show that she did not by her own conduct provoke the wrongs and abuses of which she complains. Garsed v. Garsed, 170 N.C. 672, 87 S.E. 45. The husband is not precluded from asserting and proving as a defense to his wife's action and motion that she has separated herself from him or abandoned him. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923. When the issue has been raised, it is not "sufficient that the judge merely examine the evidence or testimony to see whether there is any evidence to support [plaintiff's] charges or allegations which would operate as a prima facie showing. He must, by application of his sound judgment, pass upon its truth or falsity and find according to his conviction." Cameron v. Cameron, supra. In Byerly v. Byerly, supra, the wife moved for an allowance pendente lite and counsel fees. She alleged abandonment by the husband which he denied. He charged that she had separated from and abandoned him. The trial court found no facts and denied the motion. On appeal this Court said:

"The presumption is that he (the judge) based the judgment on the fact that plaintiff had abandoned and separated herself from the defendant, and defendant did not abandon and separate himself from plaintiff.

"C.S., 1667, * * * and the amendments (G.S. 50-16) do not contemplate that a wife who wrongfully abandons and separates herself from her husband should be awarded subsistence and counsel fees."

The briefs and order of Judge Cowper indicate that plaintiff and defendant testified at the hearing. However, the testimony is not in the record. There is nothing to show that Judge Cowper did not fully consider the pleadings and the evidence, pass upon the truth and falsity thereof, and find according to his conviction. It must be presumed that the court, for the purposes of the motion, resolved the crucial issues of fact against plaintiff.

The provisions of the statute with reference to the allowance of attorney fees are to enable the wife to have means to employ adequate counsel to meet her husband at the trial upon substantially even terms. The amount of the allowance is a matter for the trial judge. Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. Provision was made for counsel fees. The order entered is not a final determination and does not affect the final rights of the parties.

The order entered below is

Affirmed.