Peeler v. Peeler , 7 N.C. App. 456 ( 1970 )

172 S.E.2d 915 (1970) 7 N.C. App. 456

Fleta T. PEELER
v.
J. Lee PEELER.

No. 7014DC130.

Court of Appeals of North Carolina.

April 1, 1970.

Bryant, Lipton, Bryant & Battle, by Victor S. Bryant and James B. Maxwell, Durham, for plaintiff appellee.

Newsom, Graham, Strayhorn & Hedrick, by Ralph N. Strayhorn and E. C. Bryson, Jr., Durham, for defendant appellant.

MALLARD, Chief Judge.

Plaintiff appellee contends that the appeal should be dismissed because it is from an interlocutory decree and is therefore premature. We do not agree. It is provided by the statute that an "appeal lies of right directly to the Court of Appeals" from any interlocutory order of a superior court or district court in a civil action which affects a substantial right. G.S. § 7A-27(d). We hold that an order requiring payment of alimony pendente lite and attorney fees affects a substantial right from which an appeal lies as a matter of right. See also Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132 (1969).

The statutes relating to alimony and alimony pendente lite were amended in 1967, and became effective 1 October 1967. Prior to the 1967 amendments, it was held that even though the court denied the wife's motion for alimony pendente lite, the court could award counsel fees. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24 (1963). G.S. § 50-16.4 now provides that counsel fees may be awarded, upon application, "at any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3 * * *."

Payments ordered pursuant to statute for the support and maintenance of a dependent spouse are defined in the statute as "alimony" and "alimony pendente lite." G.S. § 50-16.1. In the instant case the plaintiff seeks alimony without divorce and uses her complaint as a motion for alimony pendente lite.

The statute, G.S. § 50-16.1, defines alimony pendente lite, insofar as it is pertinent to this case, as alimony ordered to be paid pending the final judgment on the merits in an action for alimony without divorce. In G.S. § 50-16.1 alimony is defined as "payment for the support and maintenance of a spouse, either in lump sum or on a continuing basis, ordered in an action for divorce, whether absolute or from bed and board, or an action for alimony without divorce." A final order in a case for alimony without divorce terminates an order for alimony pendente lite. G.S. § 50-16.3(b).

In G.S. § 50-16.3(a) it is provided that a dependent spouse, who is a party to an action for alimony without divorce, shall be 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."

The statute [G.S. § 50-16.8(f)] requires that when application is made for alimony pendente lite, "the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented." In the case before us the parties were heard, and the judge made findings of fact.

The defendant in this case does not except to any findings of fact other than the findings that the plaintiff is a dependent spouse and the allowance to plaintiff of alimony pendente lite and counsel fees.

A "dependent spouse" is defined in the statute, G.S. § 50-16.1(3), as follows:

"(3) ``Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse."

Defendant asserts in his brief that we ought to find that to be a dependent spouse, one should not be able to exist without the aid of the other spouse. We do not agree. The statute provides, among other things, that a dependent spouse means a spouse who "is substantially in need of maintenance and support from the other spouse."

In determining the needs of a dependent spouse, all of the circumstances of the parties should be taken into consideration, including the property, earnings, earning capacity, condition and accustomed standard of living of the parties. G.S. § 50-16.5. In this case when all the evidence relating to the circumstances is considered, we are of the opinion and so hold that the court did not commit error in finding that the plaintiff was a dependent spouse. The findings that the parties are husband and wife, that the defendant is capable of making payments for the support of plaintiff, that grounds for alimony without divorce exist, and that plaintiff is a dependent spouse in that she is substantially in need of maintenance and support from the defendant are all supported by the evidence. In Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964), the following appears: "Facts found by the judge are binding upon this court if they are supported by any competent evidence notwithstanding the fact that appellant has offered evidence to the contrary." This rule is applicable in the instant case.

The court also found as follows: "From all of the above and the record in this case, the court is of the opinion and so finds that the plaintiff's motion for alimony pendente lite and for counsel fees should be allowed at this time." The judge did not find in the language of the statute that the wife did not have sufficient means whereon to subsist during the prosecution of this action and to defray the necessary expenses thereof. G.S. § 50-16.3(a) (2). However, we are of the opinion and so hold that when effect is given to the finding that the plaintiff's motion for alimony pendente lite and for counsel fees should be allowed, together with all of the other findings, such is sufficient in this case to comply with the provisions of G.S. § 50-16.3 relating to the requirements for an award of alimony pendente lite.

Alimony pendente lite is measured, among other things, by the needs of the dependent spouse and the ability of the supporting spouse. The mere fact that the wife has property or means of her own does not prohibit an award of alimony pendente lite. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966). The finding that the dependent spouse owned property in the sum of approximately $8,000 and was employed did not preclude the judge, under the circumstances of this case, from awarding alimony pendente lite. We do not think that the law requires that a dependent spouse should be impoverished before the court can make such an award. Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960).

Defendant also assigns as error the allowance by the court of the sum of $200 as alimony pendente lite asserting that even if the plaintiff is entitled to alimony pendente lite that the sum of $200 is arbitrary and excessive. We do not agree with defendant's contention. After consideration of all the elements enumerated in G.S. § 50-16.5, the amount to be awarded for alimony pendente lite rests in the sound discretion of the judge, and his determination thereof will not be disturbed in the absence of an abuse of discretion. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968); Miller v. Miller, 270 N.C. 140, 153 S.E.2d 854 (1967). When the needs of the plaintiff, the separate income and property of the plaintiff, and the financial circumstances of the defendant are all considered, we cannot say that the trial judge abused his discretion by allowing the sum of $200 for alimony pendente lite. Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968).

Defendant contends that the trial court committed error in allowing attorney fees for the plaintiff. In G.S. § 50-16.4 it is provided that in actions for alimony when a dependent spouse would be entitled to alimony pendente lite, the court may award reasonable counsel fees, upon application. The determination of what are reasonable counsel fees is within the discretion of the judge. In this case we are of the opinion and so hold that the plaintiff is entitled to alimony pendente lite, and consequently, upon application, is entitled to counsel fees pursuant to the statute. Appellant does not contend that the amount of the counsel fees awarded is excessive.

The order entered in the Superior Court is

Affirmed.

MORRIS and VAUGHN, JJ., concur.