Gobble v. Gobble

HEDRICK, Judge.

Defendant contends the findings of fact do not support the order that defendant pay alimony pendente lite in the amount of $45.00 per week, and $300.00 attorney’s fees.

An award of alimony pendente lite may not be based on the earning capacity of the supporting spouse in the absence of a finding that the defendant is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reaonable support. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E. 2d 144 (1971); Robinson v. Robinson, 26 N.C. App. 178, 215 S.E. 2d 179 (1975). Since the judge found as a fact that the defendant was unemployed at the time of the hearing, and that he was at that time unable to pay any alimony pendente lite or counsel fees, it is obvious that the award of alimony pendente lite in the amount of $45.00 weekly was not based on the defendant’s present earnings, but was based on the defendant’s apparent earning capacity. The award of alimony pendente lite in the amount of $45.00 weekly, therefore, is erroneous because the court failed to find as a fact that the defendant was failing to fulfill his earning capacity because of his disregard of his marital obligation to provide reasonable support for the plaintiff.

The award of alimony pendente lite and counsel fees is likewise erroneous because the judge failed to find as a fact that the plaintiff was without sufficient means whereupon to subsist during the pendency of the action. G.S. 50-16.3. Newsome v. Newsome, 22 N.C. App. 651, 207 S.E. 2d 355 (1974).

For the reasons stated, the order is vacated and the cause is remanded to the District Court for a new hearing and new findings.

Vacated and Remanded.

Chief Judge BROCK and Judge MITCHELL concur.