Foster v. Foster, 25 N.C. App. 676 (1975)

May 7, 1975 · North Carolina Court of Appeals · No. 751DC176

25 N.C. App. 676

RUTH FOSTER v. THOMAS D. FOSTER

No. 751DC176

(Filed 7 May 1975)

Divorce and Alimony § 16— alimony — defense of adultery — absence of finding

When adultery is pleaded in bar of a demand for alimony or alimony pendente lite, an award will not be sustained in the absence of a finding of fact on the issue of adultery in favor of the party seeking the award.

Appeal by defendant from Chaffin, Judge. Judgment entered 22 January 1974 in District Court, Pasquotank County. Heard in the Court of Appeals 17 April 1975.

■The appeal is from an order awarding alimony pendente lite and counsel fees.

' No counsel for plaintiff.

White, Hall, Mullen & Brumsey, by Gerald F. White and H. T. Mullen, Jr., for defendant appellant.

VAUGHN, Judge.

Plaintiff seeks alimony, alimony pendente lite and counsel fees. Defendant pleaded his spouse’s adultery in bar of her right to recover. The order from which defendant appeals contains no finding on the issue.

When adultery is pleaded in bar of a demand for alimony or alimony pendente lite, an award will not be sustained in the absence of a finding of fact on the issue of adultery in favor of the party seeking the award. Austin v. Austin, 12 N.C. App. 286, 183 S.E. 2d 420. The court also failed to find facts to support the award of counsel fees. The judgment is vacated and remanded.

Vacated and remanded.

Judges Britt and Parker concur.