Ipock v. Ipock , 233 N.C. 387 ( 1951 )

64 S.E.2d 283 (1951) 233 N.C. 387

IPOCK
v.
IPOCK.

No. 309.

Supreme Court of North Carolina.

March 28, 1951.

H. P. Whitehurst, New Bern, and William Dunn, Jr., Raleigh, for plaintiff.

Charles L. Abernethy, Jr., New Bern, for defendant.

DENNY, Justice.

Alimony without divorce may not be awarded unless the husband separates himself from his wife and fails to provide her with the necessary subsistence according to his income and condition in life, or unless he shall be guilty of such misconduct or acts as would constitute a cause for divorce, either absolute or from bed and board. G.S. § 50-16. And alimony pendente lite and counsel fees should not be awarded in such action unless the plaintiff alleges in her complaint facts sufficient to constitute a good cause of action under the provisions of the statute. McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Price v. Price, 188 N.C. 640, 125 S.E. 264.

It has been repeatedly held by this Court that on a motion of this kind, in an action brought under the provisions of G.S. § 50-16, the judge is not required to find the facts as a basis for his order for temporary subsistence of the wife, except when her adultery is alleged by the husband as a bar to her recovery, Phillips v. Phillips, 223 N.C. 276, 25 S.E.2d 848; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436; Southard v. Southard, 208 N.C. 392, 180 S.E. 665; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158; McManus v. McManus, supra, although it is better for him to do so when the facts are in dispute, Price v. Price, supra.

This does not mean, however, that in considering a motion for alimony pendente lite, in such action, that unless the adultery of the wife is pleaded, the court may exercise an absolute and unreviewable discretion based solely upon the allegations of the complaint and the plaintiff's evidence offered in support thereof, and refuse to hear the evidence of the defendant. For it is expressly provided in G.S. § 50-15, "that no order allowing alimony pendente lite shall be made unless the husband shall have had five days' notice thereof, and in all cases of application for alimony pendente lite under this or § 50-16, whether in or out of term, it shall be admissible for the husband to be heard by affidavit in reply or answer to the allegations of the complaint".

Consequently, in passing on such motion the judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745; Holloway v. Holloway, supra. And where it affirmatively appears the defendant was not permitted to offer evidence which was pertinent to the allegations of the complaint, the exception thereto will be sustained. Holloway v. Holloway, supra.

The defendant is entitled to a rehearing on the motion, and it is so ordered.

Error.