Harper v. Harper , 9 N.C. App. 341 ( 1970 )

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176 S.E.2d 48 (1970) 9 N.C. App. 341
Donna Colman HARPER
v.
Joseph Norman HARPER.
No. 7010DC428.
Court of Appeals of North Carolina.
August 26, 1970.
*49 Emanuel & Emanuel, by Robert L. Emanuel, Raleigh, for plaintiff appellant.

G. Eugene Boyce, Boyce, Mitchell, Burns & Smith, Raleigh, for defendant appellee.

PARKER, Judge.

The sole question presented by this appeal is the correctness of the court's order denying plaintiff's motion for an interim award of alimony and counsel fees *50 pendente lite. "Subsistence and counsel fees pendente lite are within the discretion of the court. Decision is not reviewable except for abuse of discretion or for error of law." Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589. In the case before us we find no abuse of discretion or error of law.

By G.S. § 50-16.3(a) a dependent spouse who is a party to an action for divorce, annulment, or alimony without divorce, is entitled to an order for alimony pendente lite when:

"(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and

"(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof."

In this case the District Judge, as trier of the facts, has found that the parties separated by mutual agreement, there was no abandonment of plaintiff by defendant, and the competent evidence presented to the court failed to show misconduct on the part of defendant sufficient to support an order for alimony. On these findings plaintiff has failed to show at this stage of the proceeding that she is entitled to the relief demanded in her action. Such a showing is one of the statutory prerequisites to an award of alimony pendente lite. G.S. § 50-16.3(a) (1).

The order appealed from, which is not a final determination and does not affect the final rights of the parties, is

Affirmed.

MALLARD, C. J., and HEDRICK, J., concur.