Self v. Self

245 S.E.2d 541 (1978) 37 N.C. App. 199

Iris Sue Apperson SELF, Plaintiff,
v.
John Burton SELF, Jr., Defendant.

No. 7721DC765.

Court of Appeals of North Carolina.

July 11, 1978.

Frye, Booth & Porter, by Leslie G. Frye and R. Michael Wells, Winston-Salem, for plaintiff appellee.

White & Crumpler, by Fred G. Crumpler, Jr., and Michael J. Lewis, Winston-Salem, for defendant appellant.

VAUGHN, Judge.

Defendant assigns as error the court's failure to find that plaintiff's indignities to him constituted a bar to alimony. G.S. 50-16.5(b) provides that "the fact that the dependent spouse has committed an act or acts which would be grounds for alimony if such spouse were the supporting spouse shall be grounds for disallowance of alimony or reduction in the amount of alimony when pleaded in defense by the supporting spouse" (emphasis added). After the jury found that the plaintiff, without provocation, offered such indignities to the defendant as to render his condition intolerable and his life burdensome and also found that defendant had committed adultery, then the court in its discretion could bar plaintiff's right to alimony or merely reduce the amount of her alimony. The court concluded that "the conduct of the plaintiff was not such as should bar her right to alimony, but will be considered by the Court in allowing reduced alimony." This option is clearly provided for by the statute. Defendant's reliance on the case of Parker v. Parker, 261 N.C. 176, 134 S.E.2d 174 (1964) is misplaced. In that case the trial court had refused to allow the husband to be heard on the cause of the separation and entered an order allowing alimony. The Supreme Court reversed the order and remanded the case for a rehearing. Moreover, the then applicable G.S. 50-15 did not contain a provision for "reduced" alimony. We are not persuaded by defendant's argument that we should hold that the indignities committed by the wife prior to the separation should absolutely bar her right to alimony arising out of her husband's adultery. The Legislature has seen fit to leave that question for resolution by the trial judge in the exercise of his discretion on a case by case basis. The record before us discloses no abuse of discretion. Defendant also contends that where reduced alimony is appropriate the court should set out the amount of the reduction in its judgment. We do not agree. The amount of alimony to be awarded lies in the sound discretion of the trial judge. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975). In the absence of abuse of that discretion, the award will not be disturbed. The same should be true for reduced alimony. The alimony awarded plaintiff was significantly less than the amount found to be her reasonably necessary monthly expenses. The court specifically concluded that her alimony should be reduced. There is no evidence that the court abused its discretion in finding the amount of reduced alimony.

We have reviewed defendant's further assignments of error and find that, with one exception, they fail to disclose prejudicial error. Defendant correctly argues that the court failed to set out findings of fact upon which it could base the award of attorney fees. The facts that were found clearly support an award in some reasonable amount. Plaintiff's counsel did submit an affidavit which would certainly support an award of fees in the amount requested. Our Court has held, however, that the trial court must set out the findings of fact upon which the award is made. See Wyatt v. Wyatt, 32 N.C.App. 162, 231 S.E.2d 42 (1977); Rickenbaker v. Rickenbaker, 21 N.C.App. 276, 204 S.E.2d 198 (1974); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971). Plaintiff will, most likely, be entitled to an additional amount for reasonable counsel fees for services rendered since the entry of the judgment. That part of the order awarding attorney fees is, therefore, vacated and remanded for further proceedings in accordance with this opinion. In all other respects, the judgment is affirmed.

Affirmed in part; vacated in part.

MORRIS and MARTIN, JJ., concur.