Little v. Little ( 1973 )

196 S.E.2d 562 (1973) 18 N.C. App. 311

J. D. LITTLE, Jr.
v.
Jacqueline M. LITTLE.

No. 7326DC32.

Court of Appeals of North Carolina.

May 23, 1973.

James, Williams, McElroy & Diehl, P. A., by William K. Diehl, Jr., Charlotte, for plaintiff appellant.

Cecil M. Curtis, Charlotte, for defendant appellee.

CAMPBELL, Judge.

The evidence in this case reveals a man who had been married before and had one child by his previous marriage and was under a court order to provide alimony and support for his former wife and child. The amount is nearly equal to the man's current income, and he is in arrears in excess of $8,000. The woman likewise had been previously married and had three children by that marriage and was receiving support for her children from her former husband in the amount of $50 a month, which was inadequate for their support.

Both the man and the woman are employed. At the time of the marriage in 1970, the man had an income in excess of $18,000 a year, but this sum was drastically reduced in 1971 due to the man going into a new business enterprise. The woman had an income at the time of the marriage and since of approximately the same amount as the man made after the drastic reduction in his income. During their marriage both parties incurred obligations greatly in excess of their income.

The trial court, on adequate and sufficient evidence, found "[t]hat the plaintiff left home on June 22, 1972, without the defendant's consent or permission and has since that time separated himself from the defendant and has failed and refused to offer or support the defendant since that date; that the separation was willful and without just cause and due to no provocation on the part of the defendant."

In order for a spouse to be entitled to alimony, alimony pendente lite, or counsel fees, that spouse must be a dependent spouse. Sprinkle v. Sprinkle, 17 N.C.App. 175, 193 S.E.2d 468 (1972).

To find that one is a dependent spouse the trial court must make findings of fact sufficient to show (1) that a marital relationship between the parties exists; (2) either (a) that the spouse is actually substantially dependent upon the other spouse for his or her maintenance and support, or (b) that the spouse is substantially in need of maintenance and support from the other spouse, G.S. § 50-16.1(3); and (3) that the supporting spouse is capable of making the payments required, G.S. § 50-16.1(4) and G.S. § 50-16.5(a).

Only a dependent spouse may be entitled to alimony pendente lite, and then only after complying with the requirements of G.S. 50-16.3(a). That section requires the dependent spouse who makes application for alimony pendente lite to present evidence showing (1) that it appears that he or she is entitled to the relief demanded in the action in which the application for alimony pendente lite is made; and (2) that it appears that he or she has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.

Further, no spouse is entitled to an award of counsel fees unless he or she is (1) a dependent spouse, (2) who is entitled to alimony pendente lite. G.S. § 50-16.4.

The trial court found facts conforming to every requirement of the foregoing statutes.

While the evidence is subject to different interpretations, nevertheless, the interpretation of the evidence is a prerogative of the trial court; and if that evidence is sufficient to support the findings of fact, then those findings are binding upon the appellate court. In the instant case we cannot say that the evidence does not support the findings made by the trial judge.

Affirmed.

BRITT and MORRIS, JJ., concur.