Cunningham v. Cunningham

65 S.E.2d 375 (1951) 234 N.C. 1

CUNNINGHAM
v.
CUNNINGHAM.

No. 743.

Supreme Court of North Carolina.

June 7, 1951.

Johnson & Parrish, Winston-Salem, for plaintiff appellee.

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

WINBORNE, Justice.

If the husband be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, his wife may institute an action, under the provisions of G. S. § 50-16, in the Superior Court of the county in which the cause of action arose to have reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.

Pending the trial and final determination of the issues involved in such action, and also after they are determined, if in her favor, such wife may make application to the resident judge, or to the judge holding the Superior Courts of the district, for such subsistence and counsel fees, and it shall be lawful for such judge to cause the husband to pay or secure same. McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833; Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332; Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909; Best v. Best, 228 N.C. 9, 44 S.E.2d 214.

In the light of these provisions, a reading of the complaint in the present action clearly reveals the purpose of the action to be for alimony without divorce under G.S. § 50-16. The purpose is misunderstood, apparently, due to the fact that the relief asked by plaintiff is for "alimony pendente lite". It is sought in truth pending this action, and in that sense it is "pendente lite". McFetters v. McFetters, supra; Oldham v. Oldham, supra. The pleader manifestly so intended.

The complaint alleges that defendant has committed adultery, and that it has not been condoned by plaintiff. Adultery is a cause for absolute divorce. G.S. § 50-5(1).

In actions brought under G.S. § 50-16 the wife is not required to file the affidavit provided in G.S. § 50-8. The verification of the complaint shall be the same as prescribed in the case of ordinary civil actions. See latter part of G.S. § 50-16.

Hence, we hold that the complaint states a cause of action for alimony without divorce, and that the action is properly instituted. Plaintiff is not required to wait until she can maintain an action for divorce on ground of adultery. G.S. § 50-16.

Moreover, in Oldham v. Oldham, supra, Denny, J., speaking of provision of G.S. § 50-16, had this to say: "The amounts allowed to a plaintiff for subsistence, pendente lite and for counsel fees are determined by the trial court in his discretion, and are not reviewable".

For reasons stated the demurrer of defendant was properly overruled.

Affirmed.