Sayland Ex Rel. McLendon v. Sayland

148 S.E.2d 218 (1966) 267 N.C. 378

Mary A. SAYLAND, Incompetent, by and through her guardian, L. P. McLendon, Jr.
v.
Marvin A. SAYLAND.

No. 683.

Supreme Court of North Carolina.

May 25, 1966.

Robert B. Lloyd, Jr., Greensboro, Block, Meyland & Lloyd and John L. Toumaras, Greensboro, of counsel, for plaintiff appellee.

James & Speight by W. W. Speight and W. H. Watson, Greenville, for defendant appellant.

SHARP, Justice.

The 1954 judgment, which defendant seeks to modify, did not merely give judicial sanction to the parties' agreement; the court adopted that agreement as its own determination of defendant's obligation to plaintiff, and ordered him to make the specified payments set out therein. Thus, it was an order of the court which it may modify at any time changed conditions and the ends of justice require. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882; Barber v. Barber, 217 N.C. 422, 8 S.E.2d 204. A change of circumstances or conditions must be established, however, before an order for permanent alimony may be modified or discontinued. Rock v. Rock, 260 N.C. 223, 132 S.E.2d 342; 2 Lee, North Carolina Family Law § 153 (1963).

The alimony which a husband is required to pay in proceedings instituted under G.S. § 50-16 is "a reasonable subsistence," the amount of which the judge determines in the exercise of a sound judicial discretion. His order determining that amount will not be disturbed unless there has been an abuse of discretion. Hall v. Hall, 250 N.C. 275, 108 S.E.2d 487. Reasonable subsistence is measured by the needs of the wife and by the ability of the husband to pay. Ordinarily, it is primarily to be determined by the "condition and circumstances" of the husband. Martin v. Martin, 263 N.C. 86, 138 S.E.2d 801; Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700. See Note, 39 N.C.L.Rev. 189 (1961). The fact that the wife has property or means of her own does not relieve the husband of his duty to furnish her reasonable support according to his ability. Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443; Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228; Coggins v. Coggins, supra. Nevertheless, "the earnings and means of the wife are matters to be considered by the judge in determining the amount of alimony. G.S. § 50-16." Bowling v. Bowling, supra at 533, 114 S.E.2d at 232. The court must consider the estate and earnings of both in arriving at the sum which is just and proper for the husband to pay the wife, either as temporary or permanent alimony; it is a question of fairness and justice to both. Bowling v. Bowling, supra; 2 Lee, op. cit. supra § 145; 24 Am.Jur.2d, Divorce and Separation §§ 620, 631 (1966); 27A C.J.S. Divorce § 233(1) (1959).

Payment of alimony may not be avoided merely because it has become burdensome, or because the husband has remarried and voluntarily assumed additional obligations. 24 Am.Jur.2d, Divorce and Separation § 649 (1966); Annot., Alimony as Affected by Remarriage, 30 A.L.R. 79 (1924). However, any considerable change in the health or financial condition of the parties will warrant an application for change or modification of an alimony decree, and "the power to modify includes, in a proper case, power to terminate the award absolutely," 2A Nelson, Divorce and Annulment § 17.01 (2d Ed. 1961). Accord, 27A C.J.S. Divorce § 240 (1959). "The fact that the wife has acquired a substantial amount of property, or that her property has increased in value, after entry of a decree for alimony or maintenance is an important consideration in determining whether and to what extent the decree should be modified." Annot., Modification of Alimony Decree, 18 A.L.R. 2d 10, 74 (1951); 24 Am.Jur.2d, Divorce and Separation § 681 (1966). A decrease in the wife's needs is a change in condition which may also be properly considered in passing upon a husband's motion to reduce her allowance. 27A C.J.S. Divorce § 239 (1959). By the same token, an increase in the wife's needs, or a decrease in her separate estate, may warrant an increase in alimony.

We are unable to determine from this record whether the court denied defendant's motion in the exercise of his discretion, or because of a mistaken view of the law. The excerpt from his order quoted in our statement of facts suggests that he may have deemed the court without authority to modify the 1954 judgment as long as Mrs. Sayland remained incompetent. As heretofore pointed out, the court has plenary authority to modify the judgment whenever changed circumstances make such action equitable. But whatever the basis of his ruling, the sum which he ordered defendant to continue paying is not, as a matter of law, reasonable subsistence under the circumstances of this case.

The actual cost of Mrs. Sayland's maintenance in the State's hospital is presently $75.00 a month. Defendant's alimony payments are $230.00 every four weeks—slightly more than three times the cost of her actual subsistence. Even including the cost of Mrs. Sayland's guardianship, at the present time, this sum exceeds "reasonable subsistence." Subsistence, according to Webster's New International Dictionary (2d Ed. 1934), is "that which furnishes support to animal life; means of support; provisions, or that which procures provisions; livelihood." The Legislature did not contemplate that "reasonable subsistence" should include contributions by a husband which tend only to increase an estate for his estranged wife to pass on to her next of kin. Furthermore, it would seem that, in ordering defendant to pay plaintiff $57.50 per week, the judge entirely ignored the income from Mrs. Sayland's own estate, which G.S. § 50-16 requires the court to take into consideration.

The judgment appealed from is vacated, and this cause is remanded for another hearing upon defendant's motion in light of the legal principles herein enunciated.

Error and remanded.

MOORE, J., not sitting.

PLESS, J., took no part in the consideration or decision of this case.