Harrell v. Harrell

123 S.E.2d 220 (1961) 256 N.C. 96

Gladys HARRELL
v.
Walter R. HARRELL, Jr.

No. 385.

Supreme Court of North Carolina.

December 13, 1961.

Robert B. Wilson, Jr., Winston-Salem, for plaintiff appellee.

W. Scott Buck, Winston-Salem, for defendant appellant.

WINBORNE, Chief Justice.

In disposing of the former appeal this Court had this to say: "* * * Pending the trial and final determination of the issues in an action for alimony without divorce, the wife may apply to the court for reasonable subsistence and attorney's fees to be secured from the husband's estate or earnings, according to his condition and circumstances." Indeed, "Any allowance ordered may be modified or vacated at any time, on the application of either party. G.S. § 50-16. The purpose of the allowance for attorney's fees is to put the wife on substantially even terms with the husband in the litigation (citing) Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443. The amount of the allowance for subsistence pendente lite is for the trial judge. He has full power to act without intervention of a jury, and his discretion in this respect is not reviewable, except in case of manifest abuse of discretion. (Citing) Mercer v. Mercer, supra; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. The granting of an allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who has no income, but is ablebodied and capable of earning, may be ordered to pay subsistence. (Citing cases).

"The provision for temporary subsistence pending the trial on the merits does not involve an accounting between husband and wife. It is not designed to determine property rights or to finally ascertain what alimony the wife may be entitled to in the event she prevails on the merits. Its purpose is to give her reasonable subsistence pending trial and without delay. * * *"

And in closing the opinion Moore, J., speaking for the Court, declared: "The Court has jurisdiction of the parties and has plenary power and authority to require the disclosure of any information within their knowledge or available to them bearing upon a temporary allowance. It is not necessary that the parties agree as to what the husband's income is. The findings of the court will not be disturbed if based on competent evidence. Mercer v. Mercer, supra."

Moreover, it must be borne in mind that the allowance, as stated above, is subject to modification from time to time. In that light, it may not be amiss to grant allowance pendente lite. The parties may seek modification accordingly. It is apparent that definite details are not available.

The specific assignments of error have been given due consideration and are found to be without merit.

Hence the judgment from which appeal is taken is

Affirmed.

BOBBITT and HIGGINS, JJ., dissent.