Hudson v. Hudson

BROCK, J.

Defendant argues that she filed a counterclaim for alimony without divorce, and therefore plaintiff could not take a voluntary nonsuit to defeat her counterclaim. If defendant had filed a counterclaim, the principle of law argued by defendant would seem to apply. Cox v. Cox, 246 N.C. 528, 98 S.E. 2d 879; McIntosh, N.C. Practice 2d, § 1645. However, in our view defendant has not filed a counterclaim; she has only filed answer making affirmative allegations of wrongful conduct by plaintiff in defense of his allegation of a separation for the statutory period. The defendant is entitled to set forth in her answer such counterclaim as she may have, but the counterclaim must be separately stated and numbered, G.S. 1-138; McIntosh, N.C. Practice 2d; § 1247, and, “[i]t must set forth the facts constituting such cause with the same precision as if the cause were alleged in the complaint . . .”6 Strong, N.C. Index 2d, Pleadings, § 11, p. 310. While it may be true that in her prayer for relief defendant prayed that she be granted alimony without divorce, nevertheless the nature of defendant’s pleading must be determined from the allegations rather than what is contained in the prayer for relief. Pegram v. Tomrich Corp., 4 N.C. App. 413, 166 S.E. 2d 849.

Defendant further argues that because she moved for subsistence pending trial and for counsel fees, plaintiff could not take a voluntary nonsuit to defeat her right to such subsistence and expense money. Defendant cites G.S. 50-15 in support of this contention. The statute relied on by defendant was repealed by Session Laws 1967, effective 1 October 1967. But in any event the right of a defendant wife to an allowance for her subsistence pending trial and for counsel fees in a suit by her husband for absolute divorce was not derived from the statute but was grounded on the common law. Branon v. Branon, 247 N.C. 77, 100 S.E. 2d 209.

Because defendant did not file a counterclaim, but only moved for subsistence and counsel fees pending the trial of her husband’s action for absolute divorce, the husband was at liberty to take a voluntary nonsuit. This would hold true and would terminate subsistence had it already been awarded upon her motion. Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329.

Affirmed.

Campbell and Moeris, JJ., concur.