Bowen v. Bowen , 19 N.C. App. 710 ( 1973 )

200 S.E.2d 214 (1973) 19 N.C. App. 710

Eugenia Glover BOWEN
v.
Edgar Gerald BOWEN.

No. 7315DC658.

Court of Appeals of North Carolina.

November 14, 1973.

No brief filed by plaintiff-appellee.

Winston, Coleman & Bernholz by Barry T. Winston, Chapel Hill, for defendant-appellant.

BALEY, Judge.

Defendant makes three assignments of error which he contends would justify reversal of the order of the trial court: (1) admission of testimony of the plaintiff which implied adultery of defendant; (2) insufficient evidence of abandonment of the plaintiff by defendant; and (3) abuse of discretion in awarding excessive alimony and support. We do not consider any of these assignments of error to have merit.

G.S. § 50-10 provides that in divorce cases "neither the husband nor wife shall be a competent witness to prove the adultery of the other." This statute applies to actions for alimony without divorce. Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761. It is clear from the comments of Judge Horton that he was fully aware of the prohibition contained in G.S. § 50-10 and in hearing the case took care not to draw the forbidden inference of adultery from any statement made by plaintiff. He specifically instructed plaintiff's attorney not to ask any question dealing with adultery. In a nonjury case it is presumed that the judge in reaching his decision would not draw inferences from testimony otherwise competent which would render such testimony incompetent. See Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373; General Metals v. Manufacturing Co., 259 N.C. 709, 131 S.E.2d 360.

Abandonment is listed in G.S. § 50-16.2 as one of the grounds justifying an award of alimony without divorce, and it has been defined as follows: "One spouse abandons the other, within the meaning of this statute, where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intention of renewing it." Panhorst v. Panhorst, 277 N.C. 664, 670-671, 178 S.E.2d 387, 392. In this case the evidence clearly supports Judge Horton's determination that defendant abandoned plaintiff. Defendant left plaintiff intending never to return, and he never has returned. He attended one marriage counseling session with her, but he did not resume living with her after the counseling session. He has provided plaintiff with financial support during the period of separation, but this alone is not sufficient to avoid a finding of abandonment. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5; Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12; Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296.

The amount to be awarded for alimony and child support is within the discretion of the trial court and will not be disturbed in the absence of a manifest abuse of such discretion. Schloss v. Schloss, supra; Austin v. Austin, 12 N.C. App. 390, 183 S.E.2d 428; Peeler v. Peeler, 7 N.C.App. 456, 172 S.E.2d 915; Dixon v. Dixon, 6 N.C.App. 623, 170 S.E.2d 561. The record indicates that since their separation the defendant has been making payments voluntarily to the plaintiff for her support and that of their child in the amount of $430.00 per month. This was increased to $483.25 by the court pending a final determination of the litigation. Under the factual circumstances here appearing, we do not find any abuse of discretion. If there is any significant change in the condition of the parties before trial, defendant is free to move for a reduction in alimony payments. G.S. § 50-16.9; see Fonvielle v. Fonvielle, 8 N.C.App. 337, 174 S.E.2d 67.

The judgment of the trial court is affirmed.

Affirmed.

PARKER and HEDRICK, JJ., concur.