Brady v. Brady , 273 N.C. 299 ( 1968 )

160 S.E.2d 13 (1968) 273 N.C. 299

Hazel Marie Robbins BRADY
v.
William Glenn BRADY.

No. 601.

Supreme Court of North Carolina.

March 20, 1968.

Walker, Bell & Ogburn, by John N. Ogburn, Jr., Asheboro, for defendant appellee.

Ottway Burton, Asheboro, for plaintiff appellant.

PARKER, Chief Justice.

G.S. § 50-16, under which this action was brought, was repealed by Chapter 1152 of the 1967 Session Laws, effective 1 October 1967. The Act established G.S. § 50-16.1 through G.S. § 50-16.10 as the authority and procedure in actions for alimony and alimony pendente lite. Section 9 of the Act provides that it shall not apply to pending litigation. Decision in this case must rest upon our interpretation of G.S. § 50-16 as it existed prior to the 1967 enactment. Schloss v. Schloss, N.C., 160 S.E.2d 5.

The wife may institute action under G.S. § 50-16 if the husband separates himself from her and fails to provide her and the children of the marriage with necessary subsistence, or if he shall be a drunkard or spendthrift, or if he "be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board." G.S. § 50-16; Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12; Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852. G.S. § 50-7 authorizes divorce from bed and board where either party (1) abandons his or her family, or "(4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome."

G.S. § 50-16 "provides two remedies, one for alimony without divorce, and another for subsistence and counsel fees pending trial and final disposition of the issues involved." The remedy of subsistence and counsel fees pendente lite is intended to enable the wife to maintain herself according to her station in life and to employ counsel to meet her husband at the trial upon substantially equal terms. Myers v. Myers, 270 N.C. 263, 154 S.E.2d 84; Richardson v. Richardson, supra; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226.

The amount of subsistence and counsel fees pendente lite to be allowed is within the discretion of the court, and the court's decision is not reviewable except for abuse of discretion or error of law. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218; Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589. However, the discretion of the court in making allowances pendente lite is not an absolute discretion to be exercised at the pleasure of the court. "It is to be exercised within certain limits and with respect to factual conditions which are controlling. * * * Generally speaking (and excluding statutory grounds for denial), allowance of support to an indigent wife while prosecuting a meritorious suit against her husband under G.S. § 50-16, for alimony without divorce * * * is so strongly entrenched in practice as to be considered an established legal right. * * In such case discretion is confined to consideration of the necessities of the wife on the one hand, and the means of the husband on the other." Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745. These principles were quoted and applied in the case of Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46. The court, of course, must look into the merits of the action and would not be justified in making an allowance where the plaintiff, in law, has no case. The only defense limiting the power of the trial court to award subsistence is adultery of the wife, as set forth in the statute. Even when this defense is successfully interposed the court may allow reasonable counsel fees. Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332. "The granting of alimony pendente lite is given by statute for the very purpose that the wife have immediate support and be able to maintain her action. It is a matter of urgency." Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227.

The court below concluded "that the plaintiff has not made out a case upon which the relief sought can be granted." The basis of this finding is not made clear in the record before us. Plaintiff's theory as set forth in the pleadings and evidence was that the defendant had abandoned her and had offered such indignities to her as to render her condition intolerable and life burdensome. This Court held in McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544, that allegations that plaintiff was compelled to leave her husband because of his willful failure and refusal to provide her with support and that his failure was without provocation on her part were sufficient to state a cause of action for alimony without divorce on the ground of abandonment. There was evidence from which the court below could have found an abandonment by defendant or an offer of such indignities as to render plaintiff's condition intolerable and life burdensome.

The trial court indicated that it had some question about its authority to find in favor of the plaintiff because of the previous similar action brought by her and the adverse ruling made at the hearing in that action. The finding made in the previous action was not binding in the present action. Where the defendant asserts no claim and demands no affirmative relief, plaintiff, in an action for alimony without divorce, may take a voluntary nonsuit. Griffith v. Griffith, supra. In the previous action between these parties, the plaintiff took a voluntary nonsuit as she was entitled to do. The pleadings filed in the earlier action do not appear in the record before us. Conceding that they were similar, there is at least one new allegation. In the present action the plaintiff alleged that she was forced to take her children and leave the home on 14 February 1967. This allegation obviously could not have been included in an action instituted 26 January 1967 and heard on 2 February 1967. Further, the evidence presented at the hearing in the present action was much more extensive than that presented at the hearing before Judge Olive. Affidavits of 14 persons were introduced at the hearing in the present action, whereas none were introduced at the previous hearing.

The court found as a fact "that it is not possible to maintain two places of abode and two separate living establishments within the means of the defendant." This finding may have had some bearing on the court's conclusion that the plaintiff had not made out a case upon which relief could be granted. It is not a proper ground upon which the court could base its conclusion. This Court said in Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728, 85 A.L.R. 2d 795: "The granting of an allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who has no income, but is able-bodied and capable of earning, may be ordered to pay subsistence." In Reavis v. Reavis, 271 N.C. 707, 157 S.E.2d 374, this Court affirmed an order for support payments where the husband's weekly take-home pay was conceded to be only $60.36 per week.

The trial court implied that plaintiff's health rendered her an unfit and improper person to have custody of the children. All the medical testimony on this question was contrary to the court's finding. Three doctors submitted affidavits that they had seen the plaintiff professionally during the latter part of March, 1967, and expressed the opinion that plaintiff's health had improved to the extent that it would not in any way interfere with her care and custody of the children.

The trial court found "that the plaintiff has worked in the past and when relieved of the necessity of caring for said children will probably be able to support herself." If there was evidence to support this finding, it does not appear in the record.

From the record, it appears that the learned judge's discretion with respect to custody of the children and allowances to the wife was not exercised with respect to factual conditions which are controlling. Garner v. Garner, supra; Butler v. Butler, supra; and that his conclusion probably was based upon a mistaken view of the law. Myers v. Myers, supra; Sayland v. Sayland, supra. There is sufficient evidence to support the court's finding that reasonable compensation pendente lite had already been paid to plaintiff's counsel, and its order as to this is affirmed. For error in the court's order with respect to the remaining issues, the cause is remanded for further proceedings in accordance with this opinion. The question of entitlement to an allowance of fees to plaintiff's counsel for services rendered following the conclusion of the hearing below will be for determination by the judge presiding at the next hearing.

Error and Remanded.

HUSKINS, J., took no part in the consideration or decision of this case.