Parker v. Parker, 261 N.C. 176 (1964)

Jan. 17, 1964 · Supreme Court of North Carolina

261 N.C. 176

ANNE McKOY PARKER v. WILLIAM MARVIN PARKER.

(Filed 17 January 1964.)

1. Divorce and Alimony § 18—

It is error for the court upon Hie Rearing of Hie wife’s application, for alimony pendente lite fo confine Hie Rearing to tRe respective earnings of the parties a-nd refuse to bear the husband’s affidavit or .evidence in snp-pont of bis contentions that he had not abandoned his wife hut had been forced to leave home 'because the wife’s conduct made it impossdbte for him to live with her, since a wife who has abandoned her husband without justification has no right to alimony. GJS. 50-16.

Appeal by the defendant from Phillips, J., May 27, 1963 Session of Waice.

The plaintiff wife, alleging that defendant had wilfully abandoned her and the minor child of their marriage, instituted this action under G.S. 50-16 to recover a reasonable subsistence and counsel fees. She alleged, inter alia, that defendant had purposely relinquished employment by a chemical company at an annual salary of ten thousand dollars to operate a bonded warehouse for his mother at reduced earnings in order to evade his marital responsibilities. Answering, the defendant denied all material allegations of the complaint except the marriage 'and birth of the child. He alleged that he had been forced to •leave home because plaintiff’s conduct made it impossible for him to live with -her. He requested the court to determine a reasonable amount for the support of the child only 'and to awiar-d him appropriate custodial and visitation rights.

Upon the hearing on plaintiff’s application for alimony pendente lite, she offered in evidence seven affidavits, including her own, and testified in person. On direct examination, she stated that defendant had moved out of the home without any excuse on April 5, 1963, and had since contributed only .twenty-four dollars a week for the combined support of his wife and child.

After a few preliminary questions on his cross-examination of the plaintiff, the court interrupted defendant’s attorney with the pronouncement, “This hearing will be limited only to evidence of the earnings and income of the parties.” The defendant objected; he was overruled, and his exception is brought forward on this appeal as assignment of error No. 3. Thereupon, plaintiff testified that her gross income for a forty-hour week was seventy-eight dollars. The defendant testified that .his 'gross monthly salary was four hundred dollar's and that his employer owed him more than one thousand dollars for •unpaid travel expenses.

The judge found that the defendant had abandoned his wife and child without providing them with adequate support according to his means and capacity. He .awarded plaintiff the custody of the minor child and ordered that defendant pay two hundred and fifty dollars a month for their support. He .also ordered the defendant to pay plaintiff’s counsel the sum of two hundred dollars. The defendant, contending that the award, was excessive 'considering the respective earnings of the parties and that he had been denied a hearing on the plaintiff’s right to alimony, appealed from the order.

George M. Anderson for plaintiff appellee.

Emanuel & Emanuel for defendant appellant.

Per Curiam.

Defendant’s assignment of error’ No. 3 must be sustained. G.S. 50-16 does not authorize the judge, in passing on a motion for alimony pendente lite, to award a wife 'subsistence and counsel fees merely 'because she and her husband have separated. A wife who baa ¡abandoned her 'husband without just cause or who, by her wrongful ¡conduct has forced him ¡to leave home, has no right to alimony. Reece v. Reece, 232 N.C. 95, 59 S.E. 2d 363. The instant ¡case is controlled by Ipock v. Ipock, 233 N.C. 387, 64 S.E. 2d 283, in which Denny, J., (now C. J.) said:

“. . . . (I)t is expressly provided in G.S. 50-15, ‘That no order allowing alimony pendente lite shall be made unless the husband shall have had five days notice thereof, and in all oases of application for alimony pendente lite 'Under this or section 50-16, whether .in ¡or out of term, it shall 'be permissible for the husband to be heard ¡by ¡affidavit in -reply or -answer to the lalleg-ati'onis of the complaint.’

“Consequently, in passing on such motion the judge is expected to look into the merits ¡of the action -and determine in his sound legal discretion!, -after -considering the -allegations of the complaint and the evidence of the respective parties-, whether or n-ot ¡the movant iis entitled to the relief ¡sought. (Citations omitted). And where it affirmatively -appears the ¡defendant was not permitted to offer evidence which was pertinent to the allegations of the -complaint, the exception thereto- will be -sustained. (Citation omitted).”

Upon another hearing, when the evidence -of -both parties has been heard -and -considered, should the judge -conclude that the plaintiff is entitled to alimony pendente lite ¡and that the defendant is deliberately refusing to exercise his capacity to earn, ¡specific findings with reference to this situation will be in order. Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912.

The -defendant is entitled to a rehearing on the motion -and it is so ordered.

Error and remanded.