Puett v. Puett , 75 N.C. App. 554 ( 1985 )

331 S.E.2d 287 (1985)

Rhonda E. PUETT
v.
Patsy Carol PUETT.

No. 8427DC1111.

Court of Appeals of North Carolina.

July 2, 1985.

Simpson, Aycock, Beyer & Simpson by Richard W. Beyer and Michael Doran, Morganton, for defendant-appellant.

The plaintiff-appellee filed no brief.

ARNOLD, Judge.

We first address defendant's contention that the district judge's order granting plaintiff a divorce from bed and board is not supported by his findings of fact and conclusions of law.

Plaintiff based his action for divorce from bed and board on G.S. 50-7(4). That statute provides that the district court may grant a divorce from bed and board on application of the party injured if his or her spouse "[o]ffers such indignities to the person of the other as to render his or her condition intolerable and life burdensome."

In his judgment, the district judge made the following findings. First, defendant suffers from myasthenia gravis, a neuromuscular disease which causes her on occasion to become weak and unable to carry out her daily tasks, but which otherwise does not prevent her from leading a normal life. Plaintiff has been involved with a community rescue squad, spending on average six to eight hours a week participating in its activities. Plaintiff and defendant have had frequent and repeated arguments.

The testimony of the parties, as summarized by the district judge in his findings, indicates that these arguments have arisen out of plaintiff's devotion of time to the rescue squad and defendant's suspicion that plaintiff has had affairs with female members of the rescue squad. Plaintiff denied that he had had any extra-marital affairs. Further, he offered evidence through a neighbor that on one occasion subsequent to the parties' separation defendant threw ice on a woman member of the rescue squad while the parties' daughter accused the woman of having an extra-marital relationship with plaintiff. The judge found further that defendant testified that plaintiff had embarrassed her on occasion in public by calling her names such as "lardass."

In his conclusions of law, the district judge stated:

That the unfounded accusations of the Defendant and her other actions were such as to constitute such indignities to the person of the Plaintiff as to render his condition intolerable and life burdensome, even though the Plaintiff was not blameless. (Emphasis added.)

The defendant argues that the trial judge's findings and conclusions do not support the judgment because they indicate that plaintiff was not blameless and that he contributed to the abuses of which he complains. We agree that in North Carolina a party relying on G.S. 50-7(4) must not have provoked the "indignities" of which he complains. Jackson v. Jackson, 105 N.C. 433, 438-39, 11 S.E. 173, 175 (1890); Pearce v. Pearce, 225 N.C. 571, 572, 35 S.E.2d 636, 637 (1945); see also 1 Lee, North Carolina Family Law § 82 (1979). In this case, the district judge expressly concluded that plaintiff was not blameless. His findings indicate that plaintiff devoted on average six to eight hours per week of his free time to a community rescue squad, and that this was a bone of contention in the parties' marriage. The evidence and findings indicate that the plaintiff persisted in rescue squad activities even though this disturbed his wife, and caused her to suspect that he was unfaithful. Also, the plaintiff embarrassed his wife in public by calling her names such as "lardass." While it is difficult to weigh relative fault in a case such as this, the district judge's findings compel the conclusion that plaintiff's conduct so contributed to his wife's criticism and accusations and to the parties' repeated arguments that he cannot be said to have shown a lack of adequate provocation on his part. The district judge's grant of divorce from bed and board is reversed.

We next address defendant's contention that the district court erred in denying her counterclaim for alimony. Under G.S. 50-16.2, a dependent spouse is entitled to alimony when one or more of ten statutory grounds is established. In the present case the district judge concluded that the defendant was a dependent spouse but that she was not entitled to alimony as alleged in her counterclaim. In her counterclaim, defendant alleged that plaintiff "intentionally and willfully engaged in a course of conduct so as to cause her condition to become intolerable and her life burdensome" and that plaintiff constructively abandoned her. The district court concluded that plaintiff did not abandon defendant, but that his leaving the marital residence was for just cause. This is supported by competent evidence in the record. Further, the district court's findings indicate that while plaintiff often neglected his wife while participating in rescue squad activities, and on occasion called her names in public, thus contributing to his wife's suspicions and irritation, his conduct was not such as to cause her condition to become intolerable and her life burdensome. This also is supported by competent evidence in the record. The trial judge's findings support his conclusion that the defendant is not entitled as a matter of law to alimony.

Finally, defendant contends that the trial judge erred in not granting her attorneys' fees. Defendant requested attorneys' fees to prosecute her counterclaim and, as we understand, to defend against plaintiff's action for divorce from bed and board. Defendant argues that the trial judge erred by exercising his discretion to deny attorneys' fees, when defendant was the dependent spouse and in need of assistance to meet her husband on equal terms.

The district judge may award attorneys' fees only when statute allows. Under G.S. 50-16.4, "[a]t any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse...." Under G.S. 50-16.3, a dependent spouse is entitled to an award of alimony pendente lite if it appears from the evidence that the spouse is entitled to relief in the action in which application for alimony pendente lite is made. The district court would not be justified in making an allowance where the dependent spouse, in law, has no case. Brady v. Brady, 273 N.C. 299, 304, 160 S.E.2d 13, 17 (1968). As noted above, the defendant was not entitled to alimony, and therefore is not entitled to attorneys' fees for the prosecution of her claim for alimony.

Since defendant's counterclaim involved issues of child custody and support, G.S. 50-13.6 comes into play. Under that statute, in child custody or support proceedings, "the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit." The court's discretion in disallowing attorneys' fees is limited only the the abuse of discretion rule. Brandon v. Brandon, 10 N.C.App. 457, 463, 179 S.E.2d 177, 181 (1971). We find no abuse of discretion in the present case.

As to defendant's defense to plaintiff's action for divorce from bed and board, we find no statute giving the district judge authority to award attorneys' fees.

On the issue of attorneys' fees, we find no reversible error.

The district court's order granting divorce from bed and board is reversed; the order denying alimony and attorneys' fees is affirmed.

Reversed in part, affirmed in part.

MARTIN and PARKER, JJ., concur.