Mitchell v. Mitchell

MORRIS, Judge.

Defendant’s assignment of error No. 1 is as follows: “That the court committed error in overruling the defendant’s motion for summary judgment on the pleadings and issues joined as provided by Rule 56. That his Honor committed error in overruling the defendant’s motion for summary judgment when renewed, after all of the evidence, as provided by Rule 56.” This assignment is based on exceptions No. 1 and 4. All of the exceptions appear after the judgment and are entitled “Appeal Entries.” Exception No. 1 reads as follows: “Upon the call of the case for hearing, the defendant through his counsel, before any evidence was offered or pleadings read, made a motion for summary judgment on the pleadings and issues joined.” Exception No. 4 states “After all of the evidence, the defendant through his counsel, renews motion for summary judgment.” We are at a loss to determine of what error defendant complains. If the motion made at the beginning of the trial was a motion for summary judgment, no notice thereof was given, nor are we given any idea of the contents of the motion. It does not appear in the record. The second motion referred to in this assignment of error, if it was a motion for summary judgment, would be subject to the same defects. In addition, the office of summary judgment is not to test the sufficiency of the evidence. If defendant’s motion was for a directed verdict, we cannot rule on it because the record contains no evidence. If the latter motion was intended to test the sufficiency of evidence, and the first motion was actually for summary judgment, the ruling on them should not be the subject of one assignment of error. This assignment of error is overruled.

A portion of assignment of error No. 2 is as follows: “That the court committed error in overruling the defendant’s motion to dismiss plaintiff’s action for failure to state sufficient facts upon which relief might be granted, at the close of the plaintiff’s testimony, as provided by Rule 12(b) (6). That the court committed error in overruling the defendant’s renewed motion to dismiss plaintiff’s action for failure to state sufficient facts upon which relief might be granted, at the close of all the evidence.” Again, we are at a loss. If defendant’s motion was to test the sufficiency of the complaint, a motion under G.S. 1A-1, Rule 12(b) (6) was the proper motion, and this is one of the defenses listed in Rule 12(b) which can be made by motion as late as at the trial on the merits. However, defendant has not divulged to us the contents of the motion nor does his assignment of error give us any indication as to why he thinks the complaint fails to state sufficient facts upon which relief might be granted. If defendant intended the motion to test the sufficiency of the evidence and would have us, on appeal, treat it as a motion for directed verdict, we cannot comply because no evidence is before us. The record is devoid of any evidence. This assignment of error also includes the following “That the court committed error in awarding alimony pendente lite to the plaintiff for the reason that there had been no showing in the pleadings that the plaintiff was entitled to any alimony, temporary or permanent, in that the plaintiff admits that she is still living in the same household, with the defendant and further for the reason that there are no particular allegations in the complaint showing any indignities as required by G.S. 50-16.1 et seq. and Rule 1, Civil Rules of Procedure, as set forth in defendant’s exception No. 8.” Exception No. 8 is as1 follows: “That the defendant excepts to the finding of fact that the plaintiff is entitled to alimony as set out in Finding Number 10 of the Order, as there was not sufficient competent testimony to show that the plaintiff was entitled to alimony.” Obviously we cannot discuss this exception since we have no testimony before us. The portion of the assignment of error which the exception No. 8 is supposed to support has to do with pleadings. The last paragraph of this assignment of error is in almost identical words with respect to award of counsel fees and is supposedly based on defendant’s exception No. 9. However, exception No. 9 is to “Finding Number 11 of the Order, for the reason that there was no showing that the plaintiff was entitled to counsel fees.” Again the portion of the assignment refers to pleadings and the exception upon which it is based relates to evidence. This assignment of error is overruled.

By assignment of error No. 3, defendant contends that the court erred in signing the order for the reasons that “there had been no showing in the pleadings that the plaintiff was. entitled to any alimony, temporary or permanent in, that the plaintiff admits that she is still living in the same household with the defendant and further for the reason that there are no particular allegations in the complaint showing any indignities as required by G.S. 50-16.1 et seq. and for the further reason that the plaintiff and the defendant are still living together and the plaintiff is not entitled to any alimony, as a matter of law.” This assignment is based on defendant’s exception No. 10 which is “To the signing of the Order by the Honorable Thomas H. Lee, District Court Judge, dated November 20, 1970, the defendant excepts, and in open court gives notice of appeal to the North Carolina Court of Appeals, further notice waived.” The exception to the signing and entry of the judgment presents the face of the record for review. Christenson v. Ford Sales, Inc., 6 N.C. App. 137, 169 S.E. 2d 542 (1969), which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form and supported by the verdict. 1 Strong, N. C. Index 2d, Appeal and Error, § 26. It is not sufficient basis for consideration of an assignment of error that the pleadings are not sufficient.

We are aware of the points argued by defendant in his brief and in oral argument. However, we have spent considerably more time than should be necessary in trying to unravel and understand defendant’s assignments of error. As was said by Brock, Judge, in Nye v. Development Co., 10 N.C. App. 676, 179 S.E. 2d 795 (1971) :

“It is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant’s duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains.”

Exception No. 10 is, in our opinion assigned as error,, albeit most ineptly, by the language “and the plaintiff is not entitled to any alimony as a matter of law” appearing in assignment of error No. 3. We, therefore, look at the judgment to determine whether the facts found or admitted support it. G.S. 50-16.3(a) provides:

“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.”

There are sufficient findings to support a conclusion that the grounds set out in section (1) of the statute exist, but the order contains no factual findings or even a conclusion as to whether plaintiff has sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof. “The two quoted sections of G.S. 50-16.3 (a) are connected by the word ‘and’; it is therefore mandatory that the grounds stated in both of these sections shall be found to exist before an award of alimony pendente lite may be made.” (Emphasis supplied.) Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971). Because of the failure to make specific findings with respect to the sufficiency of plaintiff’s means whereon to subsist during the prosecution of her action and to defray the necessary expenses thereof, we must conclude that the facts found and admitted do not support the judgment for alimony pendente lite.

Error and remanded.

Judges Brock and Hedrick concur.