Briggs v. Briggs

205 S.E.2d 547 (1974) 21 N.C. App. 674

Mildred Lee BRIGGS
v.
William Donald BRIGGS.

No. 7426DC256.

Court of Appeals of North Carolina.

June 5, 1974.

Mraz, Aycock, Casstevens & Davis by Nelson M. Casstevens, Jr., Charlotte, for plaintiff.

Richard H. Robertson, Charlotte, for defendant.

BROCK, Chief Judge.

Defendant contends the trial court erred in failing to make sufficient findings of fact to support an order for alimony pendente lite. G.S. § 50-16.8(f) provides, among other things, that when an application for alimony pendente lite is made, the trial judge shall find the facts from the evidence presented. The trial judge is not required to make findings as to each allegation and evidentiary fact presented. However, the trial judge is required to make such findings which, upon appellate review, will support his award of alimony pendente lite.

The trial judge in this case found from competent evidence that a marital relationship existed between the parties; that the plaintiff is substantially dependent upon the defendant for her maintenance and support; and that the defendant is capable of making support payments. These findings are sufficient to show that plaintiff is the dependent spouse, and that defendant is the supporting spouse.

Defendant contends that the trial court erred in denying defendant's motion to dismiss at the close of plaintiff's evidence and renewed at the conclusion of all the evidence. "Such a motion, apparently made under Rule 41(b), in an action or cause tried by the court without a jury challenges the sufficiency of the plaintiff's evidence to establish her right to relief. (Citation omitted). In determining the sufficiency of the evidence in this cause, when the trial judge denied defendant's motion for dismissal, he was subject to the same principles applicable under our former procedure with respect to the sufficiency of the evidence to withstand the motion for nonsuit." Presson v. Presson, 12 N.C. App. 109, 182 S.E.2d 614.

In this case, plaintiff has bottomed her cause upon the grounds of abandonment and indignities suffered. To withstand the motion to dismiss, plaintiff must make a prima facie showing of the existence of her grounds for relief. The showing can be made orally, upon affidavit, verified pleading, or other proof.

In this case, there was evidence to the effect that the defendant spent a great deal of time with Elizabeth Bemis both at work and in leisure activities; that defendant denied plaintiff the right of consortium by failing to show plaintiff the love, affection and attention to which she was accustomed; that defendant warned plaintiff not to speak to Elizabeth Bemis concerning the unhealthy effect she was allegedly having on the marriage of plaintiff and defendant; and that defendant abandoned the residence and is presently residing in an apartment in Charlotte, North Carolina. In our opinion, this evidence constitutes a prima facie showing of indignities and abandonment. This assigment of error is overruled.

Defendant contends the trial court abused its discretion in ordering defendant to make payments in accordance with the findings of fact regarding the reasonable needs and expenses of the plaintiff and the two minor children.

The trial court made findings of fact that defendant received a total of $1,533.00 per month net income from his employment and stock dividends. The trial court ordered the defendant to make monthly payments for the needs and expenses of the plaintiff and the two minor children in excess of $1,000.00.

Defendant presented evidence of his monthly expenses. However, no finding was made by the trial court as to the reasonable and necessary expenses of defendant. Such an omission appears to ignore the fact that defendant must also exist during this pendente lite period. Because of the omission, we are unable to determine by appellate review the basic facts upon which the trial court predicated its award.

For the reasons stated, those portions of the order requiring payments to be made by defendant are vacated and the cause is remanded for awards based upon a balancing of the needs of plaintiff and the children with the ability of defendant to pay.

Remanded.

MORRIS and CARSON, JJ., concur.