Briggs v. Briggs, 234 N.C. 450 (1951)

Nov. 7, 1951 · Supreme Court of North Carolina
234 N.C. 450
GRACE BRIGGS v. BEN MEEKS BRIGGS

GRACE BRIGGS v. BEN MEEKS BRIGGS.

(Filed 7 November, 1951.)

1. Appeal and Error § 40d—

The findings of fact of the lower court are conclusive on appeal when supported by evidence.

2. Divorce and Alimony § 12—

In the absence of proof of any ground for divorce either a vinculo or a mensa, the court correctly denies motion for alimony pendente lite.

3. Same—

Upon denial of motion for alimony pendente Vite for want of proof of a cause for divorce either a vinculo or a mensa, the court has no authority to dismiss the action as in case of nonsuit, since the cause is not before the court on final hearing on the merits.

Appeal by plaintiff from Morris, J., June Term, 1951, LeNOib.

Modified and affirmed.

Civil action for alimony without divorce and for counsel fees, heard on motion for an allowance pendente lite.

Jones, Reed & Griffin for plaintiff appellant.

Whitalcer & Jeffress for defendant appellee.

EarNhill, J.

The court below, after hearing the evidence, made full findings of fact. The facts found are supported by the evidence offered and are binding on us. Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351, and cases cited.

On the facts found the court correctly concluded that the plaintiff has failed to make out any cause for divorce, either a vinculo or a mensa.

The existence of grounds for divorce is a prerequisite to any allowance to the wife under G.S. 50-16. To warrant an allowance pendente lite she must allege and prove a cause of action for divorce. Cameron v. Cameron, 231 N.C. 123, 56 S.E. 2d 384. In the absence of such proof, the court below properly denied her motion. Butler v. Butler, 226 N.C. 594, 39 S.E. 2d 745, and cases cited; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E. 2d 919.

But the cause was heard on motion for subsistence and counsel fees pendente lite. It was not before the court on final hearing on the merits. Hence the court was without jurisdiction to dismiss the action as in case of nonsuit. To this extent the order entered must be modified. As so modified the judgment is affirmed.

Modified and affirmed.