Haywood v. Haywood

382 S.E.2d 798 (1989)

Egbert L. HAYWOOD, Jr., Plaintiff-Appellant,
v.
Mary R. HAYWOOD, Defendant-Appellee.

No. 8814DC709.

Court of Appeals of North Carolina.

September 5, 1989.

Haywood, Denny, Miller, Johnson, Sessoms, & Patrick by George W. Miller, Jr. and E. Elizabeth Lefler, Durham, for plaintiff-appellant.

Randall, Yaeger, Jervis & Hill by John C. Randall, Durham, for defendant-appellee.

HEDRICK, Chief Judge.

The first question presented on this appeal is whether the trial court, under the circumstances of this case, erred in ordering plaintiff, husband to pay defendant, wife temporary alimony and counsel fees retroactively from 21 December 1987, the date of the entry of the order, to 1 August 1984, approximately one month after the date the parties separated. Stated another way, the question is whether the findings of fact in this case support an award of alimony pendente lite and counsel fees from approximately the date the parties separated and the date of the entry of the order, where there had been no prior order entered with respect to alimony.

G.S. 50-16.3 provides:

(a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite 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.

(b) The determination of the amount and the payment of alimony pendente lite shall be in the same manner as alimony, except that the same shall be limited to the pendency of the suit in which the application is made.

The remedy of alimony pendente lite and counsel fees is intended to enable the wife to maintain herself according to her station in life and to employ counsel to meet her husband at the trial upon substantially equal terms. Brady v. Brady, 273 N.C. 299, 160 S.E.2d 13 (1968). The purpose of an award of alimony pendente lite is to provide for the reasonable and proper support of the wife in an emergency situation, pending the final determination of her rights. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968). The purpose of the speedy proceedings for support pendente lite is to give the dependent spouse subsistence and counsel fees pending trial of the action on its merits. This support puts the dependent spouse on a more nearly equal footing with the supporting spouse for purposes of preparing for and prosecuting the dependent spouse's claim. Black v. Black, 30 N.C.App. 403, 226 S.E.2d 858, disc. rev. denied, 290 N.C. 775, 229 S.E.2d 31 (1976). An order awarding support pendente lite is intended to go no further than provide subsistence and counsel fees pending the litigation. Roberts v. Roberts, 30 N.C.App. 242, 226 S.E.2d 400 (1976). The purpose of a hearing for alimony pendente lite is not to determine property rights or to finally determine what alimony the dependent spouse may receive if she wins her case on the merits, but instead it is to give the dependent spouse reasonable subsistence pending trial and without delay. Kohler v. Kohler, 21 N.C.App. 339, 204 S.E.2d 177 (1974).

The element of urgency, emergency and immediacy is totally lacking in the present case. While defendant might have maintained successfully a claim for alimony pendente lite and counsel fees from the date the parties separated, her failure to do so demonstrates a total lack of need for an order of temporary alimony and counsel fees. The record vividly discloses that defendant was able to support herself and employ counsel to protect her interest. In fact, she brought an action for alimony and counsel fees within a few months of the separation, yet she did not pursue that claim or a claim for alimony pendente lite from 1984 until the date the order was entered. The provision in the temporary alimony and counsel fees order that defendant must pay alimony "continuing during the pendency of this action until such time as the said equitable distribution order entered simultaneously herewith is fully paid and executed" is merely a lightly disguised effort to coerce plaintiff into complying with both orders. The order awarding temporary alimony and counsel fees is not supported by the findings and conclusions and must be reversed.

Next we come to consider the order for equitable distribution dated 22 December 1987. G.S. 50-20(f) states:

The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated pursuant to G.S. 50-16.9 or 50-13.7.

In this regard we perceive a conscious effort, albeit largely unsuccessful, upon the part of the able trial judge not to violate the provisions of G.S. 50-20(f). The equitable distribution order, however, when considered together with the order for temporary alimony and counsel fees, clearly indicates it was not entered without regard to the order for alimony pendente lite and counsel fees. The two orders are interdependent. Therefore, since the equitable distribution order in the present case clearly took into consideration the fatally defective order for temporary alimony, we must vacate the order for equitable distribution and remand the cause to the district court for new findings, conclusions and the entry of a new order of equitable distribution. Such findings, conclusions and order will be made from the present record without further hearing.

The result is: the order for alimony pendente lite and counsel fees is reversed; the order for equitable distribution is vacated and the cause remanded to the district court for further proceedings.

Reversed in part; vacated and remanded in part.

WELLS and LEWIS, JJ., concur.