Little v. Little , 9 N.C. App. 361 ( 1970 )

176 S.E.2d 521 (1970) 9 N.C. App. 361

Jeane H. LITTLE
v.
June C. LITTLE.

No. 7022SC560.

Court of Appeals of North Carolina.

September 16, 1970.

Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for plaintiff appellee.

Barnes & Grimes by Jerry B. Grimes, Lexington, for defendant appellant.

MALLARD, Chief Judge.

Where the trial court finds the facts, it is the rule in North Carolina that the question of the sufficiency of the evidence to support the findings may be raised on appeal. See G.S. § 1A-1, Rule 52 of the Rules of Civil Procedure. It is also a well-established rule in North Carolina that:

"The court's findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence contra, or even though some incompetent evidence may also have been admitted. * * *" 1 Strong, N.C. Index 2d, Appeal and Error, § 57, pp. 223, 224.

The defendant's first two assignments of error challenge the award of the possession pendente lite of the house in which the parties were living at the time of the separation of the parties and the factual findings upon which the award was based. The court found as a fact that the defendant leased or rented this house from the Grubb Oil Company, a corporation of which the defendant was the president, general manager, and majority stockholder. In his affidavit the defendant asserted that he was still living in the house in question, in which the parties lived together for many years, and that it "has been open as it has been for the many years we have lived there. She left on her own free will and she can return at her own free will. Two of the children are living there." (Emphasis Added.) There was other evidence that the defendant was in lawful possession of the house. The circumstantial evidence was ample to support the findings of the trial judge that the defendant was in the lawful possession of the house as lessee. It was not error for the court, under the provisions of G.S. § 50-16.7, to order the defendant to put the plaintiff in possession of the house pending the trial of this action on its merits.

Defendant's third and fourth assignments of error question the sufficiency of the evidence to support the finding of fact by the trial judge that the plaintiff was a dependent spouse and the defendant was the supporting spouse. In this case the evidence tended to show that the defendant was a wealthy man; that in 1969 the defendant reported to the State of North Carolina an "adjusted gross income" of $55,704.00 and a "net taxable income" of $48,931.00; that in 1969 the plaintiff reported to the State of North Carolina an "adjusted gross income" of $1,281.00 and a "net taxable income" of $281.00. In his affidavit the defendant stated that for some years prior to the separation, he had been paying his wife $1,000 per month, out of which she was to support the children; that in addition to the monthly payments, he had provided a home, utilities, meat and other foods for the family; and that he had also provided his wife with adequate transportation. There was competent evidence to support the finding by the trial judge that the plaintiff was a "dependent spouse" within the meaning of G.S. § 50-16.1(3) which reads:

"(3) ``Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse."

There was also competent evidence to support the finding by the trial judge that the defendant was a supporting spouse within the meaning of G.S. § 50-16.1(4) which reads:

"(4) ``Supporting spouse' means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A husband is deemed to be the supporting spouse unless he is incapable of supporting his wife."

By assignments of error five, six, and seven, defendant contends that the trial court erred in finding as facts that on 4 June 1970 the defendant maliciously turned the plaintiff out of doors and that plaintiff was entitled to alimony pendente lite and counsel fees. Where the court finds the facts, as here, the duty of resolving conflicts in the evidence is for the court. Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780 (1968). There was competent evidence to support the findings of fact by the court that the defendant maliciously turned the plaintiff out of doors and that the plaintiff was entitled to alimony pendente lite and counsel fees, although there was some evidence that the plaintiff may have substantially contributed to the marital difficulties between the parties.

In defendant's assignments of error eight and eleven, it is contended that the amount of alimony pendente lite ordered paid to the plaintiff is excessive. The amount of alimony pendente lite is to be determined in the discretion of the trial judge in the same manner as the amount of alimony is determined. G.S. § 50-16.3(b). It is provided in G.S. § 50-16.5(a) that:

"(a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case."

When the estates, earning capacity, accustomed standard of living of the parties, and the other facts of this case are considered, no abuse of discretion is shown in the amount awarded to plaintiff as alimony pendente lite and in requiring defendant to pay the motel bill incurred by plaintiff and the children of the parties from 4 June 1970 to 1 July 1970.

Defendant's assignment of error nine challenges the amount of counsel fees awarded. The provision for the payment of counsel fees pendente lite is contained in G.S. § 50-16.4. This statute requires that the amount of the fees shall be reasonable. The reasonable amount is to be determined by the trial judge in the exercise of discretion. When the circumstances of this case are all taken into consideration, there was no abuse of discretion in the award of $2,500 counsel fees to plaintiff's counsel. The facts in the case of Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968), cited by defendant in support of his contention, are distinguishable from the facts in the instant case. See Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967) and Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960).

Defendant's tenth assignment of error, which was to the award of the primary custody of the five younger children to plaintiff, is not brought forward and discussed in his brief and is therefore deemed abandoned. Rule 28 of the Rules of Practice in the Court of Appeals.

Defendant's assignment of error twelve challenges the amount of support for the children that defendant was ordered to pay pending the trial of this cause. The court ordered the defendant to pay to plaintiff $150 per month for the support of each of the following children: John Robert Little, Zeb Vance Little, and Linda Little; and the sum of $100 per month for the support of each of the following children: Alma Jean Little and Velma June Little. There is a provision included in the order that when Alma Jean Little and Velma June Little enter a "full-time" boarding school, the payments for their benefit shall be reduced to $20 per month each. There is a further provision relating to the elimination of support payments.

It was permissible under G.S. § 50-13.5(b) (3) for the plaintiff to join this action for custody and support of the minor children of the parties in her action for alimony without divorce. Under G.S. § 50-13.4(b), "the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child." The judge, under this statute, in proper instances, may enter an order requiring support for a minor child. The amount shall be in the discretion of the court and sufficient to meet the reasonable needs of the child for health, education, and maintenance, with due regard being given to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the case. G. S. § 50-13.4(c). When all of these factors are taken into consideration in this case, there was competent evidence to support an award to the plaintiff from the defendant for the support and maintenance of the children of the parties, and no abuse of discretion has been made to appear in the amount thereof.

Defendant's assignments of error are overruled. Based upon material findings of fact, which are supported by competent evidence, Judge Seay properly entered judgment awarding alimony pendente lite, counsel fees, custody and support of the children, pending the determination of this cause on its merits.

The judgment is affirmed.

Affirmed.

PARKER and HEDRICK, JJ., concur.