Martin v. Martin , 263 N.C. 86 ( 1964 )

138 S.E.2d 801 (1964) 263 N.C. 86

Edna Grey MARTIN
v.
William Augustus MARTIN.

No. 539.

Supreme Court of North Carolina.

November 25, 1964.

Spence & Mast and Britt & Ashley, Smithfield, for plaintiff.

Albert A. Corbett and Pope Lyon, Smithfield, for defendant.

PER CURIAM.

The allegations of the complaint, if established on the trial, are sufficient to base an award of alimony. Lawson v. Lawson, 244 N.C. 689, 94 S.E.2d 826.

The court found facts, and the only findings with respect to defendant's financial circumstances and earnings are that his "take-home" pay is $457 per month, and that he receives a $20 monthly pension from the Veterans Administration which is used by him "in payment of his G. I. insurance and the loan on said policy of insurance." The court ordered that plaintiff "have the right of possession of the home of the parties, owned by the entireties," that defendant "pay on the note secured by deed of trust on said home * * * $110.00 per month," pay plaintiff for support of herself and children $42.50 per week, and pay the light, water, sewer and telephone (not including long distance calls) bills arising by reason of the use and occupancy of the home by plaintiff and the children.

The hearing was on affidavits. Defendant's unconstradicted affidavit tends to show the following facts: Defendant owns no real estate other than the home, which is owned by the entireties and is mortgaged. The home consists of a house and lot in Smithfield; the house was renovated prior to the hearing. Defendant is obligated to make monthly payments, in addition to the payments required in the order herein, $41 automobile payments (30 payments remaining), $18 hospitalization insurance. Defendant has other indebtedness, $5000 borrowed for down payment on and renovation of the home, $300 for materials used in the renovation, $130 floor covering, $115 drug store account, $200 oil bill, $100 auto and fire insurance, and $250 city and county taxes. He is attempting to pay $25 per week on these accounts. The operation and maintenance of automobile for transportation to and from work costs $50 per month. Defendant's take-home pay is $457 per month.

If defendant's evidence is true, defendant will have, including the payments required by the order herein, fixed and certain charges of at least $370 per month out of his monthly income of $457. From the balance of $87 per month defendant must provide for himself food, clothing, shelter and other necessaries, provide for the operation and maintenance of his automobile for transportation to and from work, provide for emergencies, and make payments on additional obligations of $6095 incurred on behalf of his family. It is obvious that such is impossible.

There is no evidence that defendant has any income other than his monthly wages, or any other assets to which resort may be had. The amount of alimony allowable pendente lite is a matter of sound judicial discretion having regard to the condition and circumstances of the parties and the current earnings of the husband. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912. In providing for the support of minor children the ability of the father to pay, as well as the needs of the children, must be taken into consideration by the court. Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700.

If the facts set out in defendant's affidavit are true, the payments required of defendant are clearly excessive, unrealistic and beyond the limits of judicial discretion. The court made no specific findings with respect to the matters set out in the affidavit, and it does not appear whether they were considered. The cause is remanded for determination of proper alimony pendente lite and subsistence for the children in accordance with the rules above stated.

Error and remanded.