Austin v. Austin

183 S.E.2d 428 (1971) 12 N.C. App. 390

Ramelle F. AUSTIN
v.
Ray I. AUSTIN.

No. 7120DC549.

Court of Appeals of North Carolina.

September 15, 1971.

Patterson & Doby by Henry C. Doby, Jr., Albemarle, for plaintiff appellee.

Coble, Morton & Grigg by Ernest H. Morton, Jr., Albemarle, for defendant appellant.

CAMPBELL, Judge.

The husband-appellant presents two questions. The first assignment of error is whether the trial court committed error in ordering the husband to pay the wife the sum of $2,700.00 as living expenses accruing from June 1, 1970 until May 1, 1971.

The trial judge found that the wife was entitled to support in the amount of $500.00 a month and then calculated the period of time since the husband wrongfully separated himself from his wife and gave the husband credit for the payments which had been made during this period of separation upon the calculated amount based on $500.00 a month.

G.S. § 50-16.3(b) provides:

"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."

G.S. § 50-16.1(1) provides for payment of alimony "either in lump sum or on a continuing basis."

Under the statutory authority vested in the trial judge he could award a lump payment or monthly payments. The amount of the allowance for subsistence is a matter for the trial judge. The exercise of his discretion in this respect is not reviewable except in case of an abuse of discretion. The fact that the trial judge used a combination of both a lump sum payment and a continuing monthly payment would not constitute an abuse of discretion. Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443 (1960).

The evidence adduced in the hearing before Judge Crutchfield supported the crucial findings of fact made by him, and those findings of fact adequately support the allowance ordered paid plaintiff-wife. We think she was entitled to subsistence in keeping with defendant-husband's means and ability and standard of living, not only from the time she instituted her action, but from the time her husband wrongfully separated himself from her. No abuse of discretion by Judge Crutchfield has been shown. This assignment of error is overruled.

The second assignment of error brought forward by the defendant-husband is that the trial judge abused his discretion in ordering the defendant-husband to pay the sum of $3,000.00 as counsel fees pendente lite for the plaintiff-wife.

G.S. § 50-16.4 provides that any time a dependent-spouse would be entitled to alimony pendente lite "the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse." It is to be noted that the statute uses the word "reasonable".

The record in this case is entirely lacking as to any evidence as to the nature and worth of any legal services rendered, the magnitude of the task imposed, the time required, and the skill and ability called for. In fact, the only reference in the record to counsel fees is the statement contained in the complaint to the effect that the services of the attorneys for plaintiff pendente lite "are reasonably worth $4,500.00." It is therefore not surprising that the trial judge made no findings whatsoever as to the reasonable value of the services rendered by the wife's attorneys. Compare the lack of evidence and absence of any findings by the trial judge as to the reasonable worth of the attorney's fees in this case with the evidence and findings of the trial judge in the case of Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221 (1967). See also Stadiem v. Stadiem, 230 N.C. 318, 52 S.E.2d 899 (1949).

Because of the lack of any evidence as to reasonable attorney's fees and the absence of any findings by the trial judge based upon such evidence as to the reasonable worth of attorney's fees, we think this assignment of error is well taken.

The judgment awarding alimony pendente lite is affirmed, and the judgment awarding fees to plaintiff's attorneys is reversed without prejudice to the right of the plaintiff, upon proper showing, to procure reasonable counsel fees.

Affirmed in part.

Reversed in part.

MALLARD, C. J., and HEDRICK, J., concur.