Bennett v. Bennett , 24 N.C. App. 680 ( 1975 )

211 S.E.2d 835 (1975) 24 N.C. App. 680

Bunn BENNETT
v.
Annie Mae BENNETT.

No. 748DC886.

Court of Appeals of North Carolina.

February 19, 1975.

Wallace, Langley, Barwick & Llewellyn by P. C. Barwick, Jr. and Richard F. Landis, II, Kinston, for plaintiff-appellant.

White, Allen, Hooten & Hines, P. A. by Thomas J. White, Kinston, for defendant-appellee.

MORRIS, Judge.

Plaintiff has abandoned his first 30 assignments of error for failure to argue them in his brief. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

By his thirty-first assignment of error he purports to except to the failure of the trial court to submit the following issues:

1. Did the plaintiff abandon the defendant without justification?

2. Is the defendant a dependent spouse?

3. Is the plaintiff the supporting spouse?

We note that the first issue was actually submitted to the jury. With respect to the second and third issues, the record shows plaintiff did not properly object and except to the refusal of the trial court to submit the issues tendered.

"Where there are no objections or exceptions in the lower court to the issues submitted, or to the court's refusal to submit issues tendered, appellant may not challenge the issues for the first time on appeal in his assignments of error." 1 Strong, N.C. Index 2d, Appeal and Error, § 32, p. 170, and cases cited therein.

Plaintiff's only exception was to the court's failure to instruct on the above three requested issues. However, the charge of the trial judge is not included in the record on appeal in this case. Therefore, it is not properly before us for review.

Even if the question were properly before us, we do not agree with plaintiff that the issues of who is a "dependent spouse" and who is a "supporting spouse" within the meaning of G.S. § 50-16.1(3) and (4) should be decided by the jury rather than the trial judge. Although the courts of North Carolina apparently have never decided whether the issues of who is the "dependent spouse" and who is the "supporting spouse" should be decided by the judge or by the jury, we are of the opinion, and so hold, that these questions should be determined by the trial judge. As we noted in Peoples v. Peoples, 10 N.C.App. 402, 410, 179 S.E.2d 138 (1971):

"The determination of what constitutes a ``dependent spouse' and what constitutes a ``supporting spouse' requires an application of principles of statutory law to facts and are therefore mixed questions of law and fact...."

Moreover, as noted by Dr. Robert E. Lee in his work entitled North Carolina Family Law:

". . . It should be unnecessary, it seems to this writer, to submit to the jury the determination of which is the dependent and which the supporting spouse. These are complicated questions of fact, often involving accounting and other financial records, and these questions can best be determined by the judge when he sets the amount of the permanent alimony.... The facts necessary to prove which spouse is dependent and which supporting are identical with those required to be considered by the judge in determining the amount of the permanent alimony at the final hearing. It would be futile to produce this evidence twice." 2 Lee, N.C. Family Law, § 137, at p. 50 (Supp.1974).

For the foregoing reasons, defendant's assignment of error is hereby overruled.

Judge Nowell found sufficient facts to establish defendant as the dependent spouse and plaintiff as the supporting spouse and the need of the defendant for support and the ability of the plaintiff to provide support. His findings were supported by competent evidence as well as the ability of the defendant to make the payments awarded.

No error.

PARKER and HEDRICK, JJ., concur.