Myers v. Myers

154 S.E.2d 84 (1967) 270 N.C. 263

Sarah Virginia MYERS
v.
Irvin Jackson MYERS.

No. 455.

Supreme Court of North Carolina.

May 3, 1967.

Randolph & Drum, Winston-Salem, for plaintiff appellant.

Hayes & Hayes, Winston-Salem, for defendant appellee.

BOBBITT, Justice.

"The statute (G.S. 50-16) provides two remedies, one for alimony without divorce, and another for subsistence and counsel fees pending trial and final disposition of the issues involved." Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Richardson v. Richardson, 268 N.C. 538, 540, 151 S.E.2d 12, 13, and cases cited.

"The remedy thus established for the subsistence of the wife pending the trial and final determination of the issues involved and for her counsel fees is intended to enable her to maintain herself according to her station in life and to have sufficient funds to employ adequate counsel to meet her husband at the trial upon substantially equal terms." Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226.

G.S. § 50-16 contains this provision: "(I)n all applications for alimony under this section it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees." Defendant pleaded the adultery of plaintiff in bar of her right to alimony. Defendant's said allegations do not relate to a counterclaim. Hence, they are deemed denied by plaintiff. Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793.

"On motion for alimony pendente lite made in an action by the wife against the husband pursuant to G.S. § 50-16, the judge is not required to find the facts as a basis for an award of alimony except when the adultery of the wife is pleaded in bar." (Our italics.) Creech v. Creech, supra; Deal v. Deal, supra.

Although Judge Johnston did not make definitive findings of fact, this statement or recital, to which plaintiff excepted, immediately precedes his order: "(A)nd it further appearing from the evidence at this hearing that during the year 1966 there was evidence of unfaithful conduct on the part of the plaintiff with a married man before the court * * *" This evidence consists of a joint affidavit of two private detectives to the effect that on April 14, 1966, they observed Mr. J. R. Sparks arrive at plaintiff's residence at 8:10 p. m. and depart at 9:30 p. m.; and on May 12, 1966, they saw him arrive at 7:35 p. m. and depart at 9:10 p. m. Mindful of the evidence offered in the custody hearings to the effect that both Mr. and Mrs. Sparks were friends of plaintiff, the probative value of this affidavit is unimpressive. The order denying plaintiff's application for alimony pendente lite and counsel fees indicates plainly that substantial reliance was placed by the court upon the fact that there was evidence of plaintiff's alleged adultery. If said affidavit be so considered, it was insufficient to support a finding of adultery and insufficient to bar plaintiff's right to alimony pendente lite and counsel fees. In this respect, it seems clear the court, in entering the order from which plaintiff appeals, acted under a misapprehension of applicable law. Allen v. Allen, 258 N.C. 305, 310, 128 S.E.2d 385, 388, and cases cited; Davis v. Davis, 269 N.C. 120, 127, 152 S.E.2d 306, 312. Accordingly, the order is vacated and the cause remanded to the end there may be a hearing de novo with reference to plaintiff's second application for alimony pendente lite and counsel fees.

Error and remanded.