Arnold v. Arnold , 30 N.C. App. 683 ( 1976 )

228 S.E.2d 48 (1976) 30 N.C. App. 683

Betty Howell ARNOLD
v.
Bobby J. ARNOLD.

No. 7628DC293.

Court of Appeals of North Carolina.

September 15, 1976.

Gray, Kimel & Connolly by David G. Gray, Jr., Asheville, for plaintiff-appellee.

Riddle & Shackelford, P. A. by Robert E. Riddle, Asheville, for defendant-appellant.

BRITT, Judge.

Defendant states his first question thusly: "Did the court err in ordering the payment of child support without determining the needs of the children as distinguished from the needs of the plaintiff and the minor children jointly?" We answer in the negative.

Defendant relies upon G.S. 50-13.4(e) which in its last sentence provides that "[i]n every case in which payment for the support of a minor child is ordered and alimony or alimony pendente lite is also ordered, the order shall separately state and identify each allowance." This provision of the statute is inapplicable to the present case. The court found that plaintiff was not a dependent spouse for purposes of alimony pendente lite. No alimony was awarded and all provisions for support are solely for the benefit of the minor children.

Defendant next contends that the award of counsel fees for plaintiff's attorney was improper under G.S. 50-13.6 which requires that "[b]efore ordering payment of a fee in a support action, the court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances. . .." We find no merit in this contention. The Supreme Court has recently held that the requirement of a finding that the party ordered to pay support has refused to provide support applies only in support actions and not in custody or custody and support actions. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975). The motion in the present case was for both custody and support; therefore, no finding of refusal to support was required.

Finally, defendant contends that the trial judge erred in awarding possession and control of the home owned by the parties as tenants by entirety, to the plaintiff and minor children for the benefit of the minor children. Defendant argues that the awardance of the home as a part of child support constituted a writ of possession which is allowable under G.S. 50-17 only when the wife is entitled to alimony or alimony pendente lite. This contention is without merit. The awardance of the homeplace did not constitute a writ of possession and this court has specifically held that the trial judge may award exclusive possession of the homeplace, even though owned by the entirety, as a part of support under G.S. 50-13.4. Boulware v. Boulware, 23 N.C.App. 102, 208 S.E.2d 239 (1974). "Certainly, shelter is a necessary component of a child's needs and in many instances it is more feasible for a parent to provide actual shelter as a part of his child support obligations than it is for the parent to provide monetary payments to obtain shelter." 23 N.C.App. at 103, 208 S.E.2d at 240.

The judgment appealed from is

Affirmed.

HEDRICK and MARTIN, JJ., concur.