Newsome v. Newsome

207 S.E.2d 355 (1974) 22 N.C. App. 651

Emma S. NEWSOME
v.
Hollis NEWSOME.

No. 746DC506.

Court of Appeals of North Carolina.

August 7, 1974.

Jones, Jones & Jones by C. Roland Krueger, Ahoskie, for plaintiff appellee.

Revelle, Burleson & Lee by L. Frank Burleson, Jr., Murfreesboro, for defendant appellant.

MORRIS, Judge.

The defendant contends that it was error for the trial court to award alimony pendente lite and counsel fees in that there were insufficient findings of fact to support the award.

In a hearing for alimony pendente lite, while it is not required that the trial judge make findings as to each allegation and evidentiary fact presented, it is necessary for the trial judge to make findings from which it can be determined upon appellate review that an award of alimony pendente lite is justified and appropriate in the case. G.S. § 50-16.8(f); Sprinkle v. Sprinkle, 17 N.C.App. 175, 193 S.E.2d 468 (1972).

G.S. § 50-16.3 provides that alimony pendente lite may be granted when:

"(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and

(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof."

In determining the amount of alimony pendente lite, G.S. § 50-16.5(a) provides:

"(a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case."

Furthermore, case law dictates that the trial court should take into consideration all the circumstances of the parties, including the property, earnings, earning capacity, financial needs and accustomed standard of living of the parties. Peeler v. Peeler, 7 N.C.App. 456, 172 S.E.2d 915 (1970); Sprinkle v. Sprinkle, supra; Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79 (1960); 3 Strong, N.C. Index 2d, Divorce and Alimony, § 18, p. 355.

Although the trial court concluded as a matter of law that the plaintiff was a "dependent spouse" and that she was "substantially in need of maintenance and support from her husband", there were no findings of fact, other than the findings that plaintiff was no longer working and that she had no other source of income, which would support these conclusions. There were no findings of fact as to plaintiff's needs and expenses, her accustomed standard of living, or her present standard of living. While it is not necessary in awarding alimony pendente lite, on the basis of dependency for the trial judge to find that the wife would be unable to exist without support, it is necessary that the trial judge find facts which establish that she is substantially in need of maintenance and support. See Peeler v. Peeler, supra; Cannon v. Cannon, 14 N.C.App. 716, 189 S.E.2d 538 (1972); Sprinkle v. Sprinkle, supra.

The remedy of alimony pendente lite and counsel fees, established for the subsistence of the dependent spouse pending final determination of the issues, 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. Myers v. Myers, 270 N.C. 263, 154 S.E.2d 84 (1967); Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226 (1952); Sprinkle v. Sprinkle, supra. While the remedy is of noble intent, it should only be granted upon a finding of need. In the case at bar, the findings of fact were insufficient to support the conclusions of law that plaintiff was a dependent spouse, and that she was substantially in need of maintenance and support.

We, therefore, hold that it was error for the trial court to make an award of alimony pendente lite and to award to the plaintiff possession of the home.

Since the findings of fact are insufficient to support an award for alimony pendente lite, they are likewise insufficient to support an award of counsel fees. Sprinkle v. Sprinkle, supra.

The judgment below is vacated, and this cause remanded for rehearing on plaintiff-wife's application for alimony pendente lite and counsel fees.

Reversed and remanded.

BRITT and BALEY, JJ., concur.