Haddon v. Haddon , 42 N.C. App. 632 ( 1979 )

CLARK, Judge.

Defendant first assigns as error the admission by the trial court of evidence concerning unnatural sex acts between the plaintiff and the defendant. Defendant contends that evidence of spousal sexual conduct is not admissible as such evidence constitutes a “confidential communication” within the meaning of G.S. 8-56.

G.S. 8-56 establishes a spousal privilege applicable to the testimony of husband or wife in “any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery, or in any action or proceeding for or on account of criminal conversation . . . .” (Emphasis added.) Clearly, an application of G.S. 8-56 is not proper where, as here, the testimony regarding sexual conduct is offered to establish constructive abandonment in a temporary alimony proceeding. Defendant’s reliance on cases such as Wright v. Wright, 281 N.C. 159, 188 S.E. 2d 317 (1972) and Hicks v. Hicks, 271 N.C. 204, 155 S.E. 2d 799 (1967), is misplaced, as the purpose of the testimony offered in those cases was to prove adultery on the part of one of the spouses. Furthermore, the defendant failed to object to the introduction of the testimony at trial and in fact in his own testimony admitted the performance of certain deviate sexual acts. See Hunt v. Woolen, 238 N.C. 42, 76 S.E. 2d 326 (1953). This assignment of error is overruled.

The defendant contends that there is no evidence to support the findings by the trial court that defendant (1) failed to provide adequate support and (2) forced participation in sex practices which were intolerable to plaintiff, the grounds for alimony alleged in the complaint.

One of the requirements for an award of alimony pendente lite is that the court find as an ultimate fact that it appears from the evidence that the alleged ground for alimony appears to be true. G.S. 50-16.3(a)(l), and see Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E. 2d 468 (1972). It is sufficient if the trial court finds that it appears from the evidence that the dependent spouse is entitled to the relief demanded and that it appears the said spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to pay the necessary expenses thereof. Painter v. Painter, 23 N.C. App. 220, 208 S.E. 2d 431 (1974); Sprinkle v. Sprinkle, supra.

Evidence of abnormal and unnatural sexual conduct was offered by both plaintiff and defendant. There was conflicting evidence on the question of whether such conduct was abhorrent and intolerable to the plaintiff. However, the plaintiff did offer abundant evidence that defendant’s persistent sexual conduct was intolerable to her and that she was forced against her will to engage in them with defendant. We find such evidence sufficient to support the finding of the trial court that such conduct by defendant was so abhorrent and degrading as to render it impossible for plaintiff to maintain the marital relationship and to cause her to separate from defendant. G.S. 50-7(4) and G.S. 50-16.2(7).

Plaintiff also presented evidence which tended to show that the plaintiff depleted her personal, savings in order to provide necessities for the family. She was forced on several occasions to borrow money from her family in order to buy food and gasoline. Standing alone, the defendant’s failure to provide support would be sufficient to uphold the judge’s award of alimony pendente lite to the plaintiff. Moreover, in this case, the defendant’s failure to accept responsibility in his business, his failure to file federal or state income tax returns and his recurring failure to promptly pay household bills could collectively constitute constructive abandonment. See Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971).

Defendant next contends that the trial court failed to make sufficient findings of the defendant’s income and financial ability to support the award of alimony pendente lite as required by G.S. 50-16.5, and for child support as required by G.S. 5043.4(c). There was no evidence of defendant’s earnings because he had never filed an individual income tax return. Defendant testified that he was in contact with an IRS agent about his failure to file tax returns for 1975, 1976, and 1977. However, it did appear from the evidence that defendant was sole proprietor of a wholesale business, that there was $1500 to $1600 in the cash drawer of the business, that his accounts receivable were between $25,000 and $40,000, and that the business inventory was between $45,000 and $60,000. It is apparent that defendant has substantial assets and some earnings, but that defendant’s failure to prepare business statements and file income tax returns precluded any competent evidence of his earnings. We concede that it would be more desirable for the trial court to have more evidence of defendant’s earnings and financial condition and that the court make more detailed findings of fact based on such evidence, but in view of the fact that such evidence was not available to the court because of defendant’s failure or refusal to prepare business records and file income tax returns and that the alimony was temporary, we conclude that the evidence and findings are sufficient to support the awards of alimony pendente lite and child support. This is a situation where the statutory requirements for determining awards for support of dependent children (G.S. 50-13.4) and spouses (G.S. 50-16.5) must be so construed that legislative purpose is not vanquished by the rule of strick construction. A parallel situation arises where the supporting spouse deliberately depresses income in disregard for the duty to provide for the dependent spouse and children, in which case it is extablished that capacity to earn may be the basis of an award. See Beall v. Beall, 290 N.C. 669, 228 S.E. 2d 407 (1976).

Defendant finally argues and the plaintiff concedes that the trial court erred in awarding attorney fees to the plaintiff in the absence of findings as to the value of the legal services.

In this contention, the defendant is correct. A finding by the trial court as to the reasonable value of legal services rendered is necessary in order to sustain an award of attorney fees. Self v. Self, 37 N.C. App. 199, 245 S.E. 2d 541, cert. denied, 295 N.C. 648, 248 S.E. 2d 253 (1978). No such finding was made in this case. Therefore, this portion of the order is vacated and remanded to the trial court for further proceedings.

The order appealed from is

Affirmed in part; reversed in part; and remanded.

Judges Mitchell and Erwin concur.