Cavendish v. Cavendish , 38 N.C. App. 577 ( 1978 )

248 S.E.2d 340 (1978) 38 N.C. App. 577

Ann S. CAVENDISH
v.
Richard C. CAVENDISH.

No. 7726DC1034.

Court of Appeals of North Carolina.

November 7, 1978.

Harkey, Faggart, Coira & Fletcher by Charles F. Coira, Jr., Charlotte, for plaintiff-appellee.

Thomas R. Cannon, Charlotte, for defendant-appellant.

CLARK, Judge.

Defendant first contends that the trial court erred in failing to grant him a divorce from bed and board from the plaintiff since the jury had found that both plaintiff and defendant had rendered indignities to the other. Defendant contends that if divorce from bed and board were entered in favor of both parties then the defendant would have no obligation to pay alimony to the plaintiff.

G.S. 50-16.5(b) provides:

"Except as provided in G.S. 50-16.6 in case of adultery, the fact that the dependent spouse has committed an act or acts which would be grounds for alimony if such spouse were the supporting spouse shall be grounds for disallowance of alimony or reduction in the amount of alimony when pleaded in defense by the supporting spouse."

This statutory language makes it clear that the trial court may, in its discretion, award some permanent alimony to a dependent spouse even when the jury finds that the dependent spouse has committed acts which would support the granting of a divorce from bed and board in favor of the supporting spouse. See Self v. Self, 37 N.C.App. 199, 245 S.E.2d 541 (1978). The statute provides that the only case in which the trial court is precluded from awarding any alimony to the dependent spouse is when the dependent spouse has committed adultery. That is not the case here, and therefore, even if the court had granted the divorce from bed and board in favor of the defendant, it would not affect the award of alimony. See Self v. Self, supra. Therefore, defendant's first contention is without merit.

Defendant next contends that the judgment was not supported by adequate evidence and findings of fact. Specifically, the court did not make findings of fact as to what indignities had been rendered by each of the parties nor did the court give any indication of how it arrived at the 30% figure. The amount of alimony to be awarded lies in the sound discretion of the trial judge. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975). G.S. 50-16.5(b) does not require the court to make findings of fact in support of its reduction of alimony. In Self, supra, this court held that the trial judge need not set out the amount of the reduction of the alimony award in the judgment. In the case sub judice, the trial court went further than required by including the precise percentage of reduction in the judgment. The alimony awarded was substantially less than plaintiff's living expenses and there is no evidence that the court abused its discretion in reducing the alimony in the amount of 30%. Defendant's contention is without merit.

Defendant's third contention is that there was insufficient evidence and findings of fact to support the court's order which discounted approximately $700 from defendant's monthly financial needs. We find no merit in defendant's contention. The trial court based its findings of fact upon the Affidavits of Financial Standing submitted by the parties and upon the testimony of the parties. There was ample evidence presented to support the finding of fact. The judgment included a finding of fact that the defendant earned a salary of $40,000 per year and his expenses were approximately $1,300 per month.

The defendant's final argument is that the court erred in permitting the order, which provided for alimony pendente lite, to remain in effect until the hearing on permanent alimony. Although the verdict entered in April 1977 resolved certain issues, a final judgment could not be entered without additional evidence on the issue of permanent alimony. The trial court is empowered to order the previous pendente lite order to remain in effect until it was superseded by a final judgment. G.S. 50-16.1; see, Lee, N.C.Family Law, § 135 (3d ed. 1963).

The contentions of defendant are without merit and therefore the judgment is affirmed.

Affirmed.

BROCK, C. J., and MARTIN (HARRY C.), J., concur.