Williams v. Williams, 261 N.C. 48 (1964)

Jan. 17, 1964 · Supreme Court of North Carolina
261 N.C. 48


(Filed 17 January 1964.)

1. Divorce and Alimony § 17; Husband and Wife § 11—

The court is without ¡authority to award the wife alimony and counsel ■fees -while a valid deed of separation between the parties remains undm-peached.

2. Same—

A resumption, of marital relations rescinds a prior deed- of separation.

*493. Divorce and Alimony § IS—

Defendant -in an action for divorce from bed and board may mot oomtemd th-at the court is without power to award oounsel fees and! subsistence pendente Ute until after the validity of a prior deed of separation between the parties had been determined by a jury, but 'the court may enter the order pendente Ute upon its finding that the deed of separation had been rescinded iby a resumption of the marital -relations, although its finding in this respect is not binding on the trial on the merits. G.S. 50-15.

4. Appeal and Error § 35—

iStatements in the record disclosing that the order appealed from was duly heard in regular course are controlling notwithstanding statements in appellant's brief to the contrary.

5. Appeal and Error § 22a—

An assignment of error to the denial of a motion to strike portions of the complaint must disclose the matter which appellant sought to have stricken without a voyage of discovery through the record.

6. Appeal and Error § 16—

The granting of eertiorari does not relieve movant of the necessity of preserving his exceptions 'and of perfecting his appeal with regard to the assignments 'of error as required by the Rules of Practice in the Supreme Oourt.

7. Divorce and Alimony § 18—

Under the 1961 amendment to G.S. 50-15 the lower court is no longer under the necessity of setting forth its findings of fact in detail in awarding subsistence pendente Ute under G.-S. 50-15, and when the evidence is ■sufficient to sustain an affirmative finding of all the predicate facts it will be presumed on appeal that the court found the facts entitling the wife to subsistence, and that it appeared to the court that the wife lacked sufficient means on which to subside during the pendency of the suit.

8. Divorce and Alimony § 23; Husband and Wife § 11—

A separation agreement does not deprive the court of its authority to enter 'an order requiring the -husband to make specdfie monthly payments for .the support iof -the minor children .of the marriage, and the amounts ■agreed upon in the deed of separation for the support of the children is merely evidence for the court to- consider with other evidence in determining a reasonable -amount for 'their support.

9. Parent and Child § 6—

The primary obligation for the support of a minor child rests upon the father, -and such duty does not end with 'the furnishing of mere necessities jf the father is able -to -afford more, -and in addition to the actual needs of the child the father has a legal duty -to give 'the chil-d those advantages which acre reasonable, considering -his financial condition and position in society.

*5010. Divorce and Alimony § 2S—

The amoturut to be allowed by tbe court for tbe support of tbe minor children of a marriage rests in the coiurt’s sound discretion upon considi-■eration of the needs of the children in the light of the special circumstances 'of the parties, their station din life, their standard of Irving and •the advantages to which they had become accustomed.

ON writ of certiorari, treated as iaa appeal by defendant to review the order of McLaughlin, J., signed July 20, 1963 in chambers in an action pending in Iredell.

The plaintiff, .wife, instituted this action to. obtain a divorce from bad aod board. iShe .asked for both temporary 'and permanent alimony, ‘counsel fees, tihe custody of the two minor children of the marriage, and .an allowance for their support. In the complaint and the two amendments thereto, she alleged that she and tbe defendant separated on August 8, 1961, resumed marital relations on July 15, 1962 and separated again on August 12, 1962, on which date the defendant wrongfully abandoned her .and since which he has willfully refused to provide her and the children with adequate support. She further alleged- that ea.cth separation was .preceded by conduct (detailed in some paragraphs and pungently characterized in others) which rendered her life burdensome and her condition intolerable.

The defendant filed a motion to strike numerous portions of the original 'complaint and each amendment in its entirety. He bas as yet filled no answer to1 the complaint but, prior to tbe hearing on plaintiff’s application for temporary alimony and counsel fees, he filed a. “Plea in Bar” -in which he set up a deed oif separation, duly executed 'and acknowledged by the parties on June 8, 1962, as .a complete bar to plaintiff’s claim for support and counsel fees. A copy of the deed of separation -was attached to' the plea. It recited that in consideration of ten thousand 'dollars, plus “certain tangible personal property” which she had removed from their home, .plaintiff released defendant from hi-s obligation to support her 'and conveyed to' him .all her interest in then’ joint property. The parties agreed therein that plaintiff should have the custody oif the two children of the marriage subject to -certain visitation rights in the defendant and that be would pay plaintiff two hundred dollars a month to compensate her for tbe living expenses of each ■child ¡while in her custody.

Plaintiff replied to the plea in bar, alleging that .after the execution of the deed of .separation the parties became reconciled and lived together .as man and wife from July 15, 1962 until August 12, 1962 when the defendant, without justification, abandoned her and the minor children.

*51On July 20, 1963 Judge McLaughlin heard plaintiff’s motion for temporary ¡alimony and counsel fees. His Honor found the facts in accordance with the plaintiff’s evidence and contentions. It would serve no -useful purpose to recapitulate .the evidence which covers 150 pages oif the record. It recounts in oppressive detail a sad and tragic saga which, if .true, fully justified the judge’s findings. Only the evidence pertinent to this decision will be referred to in the opinion. On the hearing the judge considered and denied defendant’s motion to strike, his ¡appeal from the clerk’s order allowing the ¡amendments to the complaint, -and the .plea .in bar. He awarded the custody of the .two children to the plaintiff, and denied the defendant .any contact whatever with them. Pending the further orders of (the court, he directed the defendant to .pay the .plaintiff $1,500.00 a month — $500.00 for her support ¡and $500.00 for the support of each .child. From this order the defendant -appealed, assigning nine errors.

Deal, Hutchins & Minor by Fred S. Hutchins and Edwin T. Pullen; Chamblee & Nash by M. L. Nash for plaintiff appellee.

Williams, Willeford ■& Boger; E. T. Bost, Jr.; and W. R. Battley for defendant appellant.

Sharp, J.

Defendant’s assignments of error 1, 4, 5, .and 8 relate, in substance, to his Honor’s ruling that the deed of separation did not ¡constitute a valid plea in bar. A wife who, -in ¡a valid deed of separation, has released her husband from his -obligation .to support is remitted to her rights under the agreement. As long ¡ais the deed of separation stands uniimpeaiched, the court is without power to award her alimony ¡and counsel fees. Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235; Brown v. Brown, 205 N.C. 64, 169 S.E. 818. A resumption of -marital relations by the parties, however, will annul and rescind -the deed of separation. Turner v. Turner, 242 N.C. 533, 89 S.E. 2d 245; Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768. The defendant recognizes this rule of law but he -contends that since he had denied -any resumption of marital relations with the plaintiff, the court was without ¡authority to- award her alimony pendente lite until that issue had been determined by a jury. When the j-udge declined to ¡delay the 'hearing on this ground, defendant attempted to delay it ¡by noting an Immediate ¡appeal to the Supreme Court. However, the judge proceeded to hear the entire matter, including the parties’ evidence pertaining to the plea in bar. After doing so he found the facts -against the ¡defendant.

The defendant’s contention with reference to the 'hearing of his plea cannot be sustained. It was decided adversely to him in Oldham v. *52 Oldham, 225 N.C. 476, 35 S.E. 2d 332, and Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171. In eaicth of these cases (actions for 'alimony without divorce) the defendant 'contended that a deed of separation- between the parities must first be declared invalid before the judge could award laiMmony pendente lite. In each ease the court overruled this contention. In Oldham, Denny, J. (now C.J.) said, “We know of no defense (that limits the power’ -of >a trial court to- award subsistence pendente lite under G.S. 50-16, except the 'defense 'Specified in the statute (adultery) .... Therefore, in an action for lalimony without divorce the validity or reasonableness of a separation agreement need not be determined before the court can award temporary allowances. The statute expressly provides that such allowiamces may be made ‘pending the trial and final determination of the issues involved in such action’.”

Oldham -and Taylor, although decided under G.S. 50-16, are equally applicable to a motion for temporary -alimony under G.S. 50-15 pending the trial of an action for divorce from bed and board. “The granting of alimony pendente lite is given by statute for -the very purpose that the wife have immediate support and be -able to- maintain her action. It is a matter of urgency.” 2 Lee, North Carolina Family Law 138.

The defendant was not entitled -either to- have his plea in bar determined by a jury or to have this court -review the judge’s ruling on the plea -in bar before the judge could award plaintiff temporary alimony. Cf. Veazey v. Durham, 231 N.C. 354, 57 S.E. 2d 375. The finding of fact by the judge that the parties had resumed marital relations after the execution of the deed of separation is not -binding on them upon -a trial on the merits, and is not competent in evidence thereon. Hall v. Hall, 250 N.C. 275, 108 S.E. 2d 487. Assignments of error 1, 4, 5 and 8 are not sustained.

In the record, defendant’s exception No. 2 appears as follows:

“To the ruling of the Court overruling the defendant’s objection and exception to the Orders -of the Clerk of the Superior Count -allowing -amendment -to the pleadings by the plaintiff, -the defendant excepts.”

However, in the grouping of the -assignments of error, assignment No. 2 appears as f ollows:

“2. To the ruling of the Court overruling the defendant’s oib-j action and exception to- the orders of the Clerk of Superior Court -allowing amendments to the pleadings by the plaintiff, without notice or hearing thereon. (Italics ours).

*53EXCEPTION No. 2 (R. pp. 43-44).

(Petition for Writ oif Certiorari filed as to this ruling.) ”

The record fails to sustain the statement that the ruling complained of was “without notice .or hearing thereon.” The order appealed from recites that this matter wais “heard upon all the motions filed herein as •appears of record and all appeals from the Clerk of Superior Court as 'appears of record and upon the plea in bar. . . .” Statements in the appellant’s 'brief to the contrary cannot .be considered or accepted. The allowance of the motion to amend the complaint was in the sound discretion of the court and no abuse appears.

Assignment oif error No. 3 is to “the ruling of the Court in denying the defendant’s motions to strike. . . .” The omission indicated is identical with the italics in assignment No. 2 above. Plaintiff’s complaint and the amendments thereto constitute fourteen pages of the printed record. Defendant’s motion to strike portions of the complaint relates to words, phrases, whole paragraphs, -and parts of paragraphs. Nowhere in the record are these segregated ¡nor .are they delineated in the complaint itself. Assignment of 'error No. 3 is equivalent to an assignment relating to a motion to strike which the court characterized as “broadside” in Harris v. Light Co., 243 N.C. 438, 90 S.E. 2d 694. It was to review .the ruling of the trial judge in denying defendant’s motion' to strike in its entirety that this court allowed certiorari thereby granting defendant the right to an immediate appeal from the order of Judge McLaughlin. However, in perfecting this appeal, so far as it pertains to the ruling on the motion to «strike, the defendant has totally disregarded Rules 19 (3) amid 21 of the Rules of Practice of the Supreme Court which apply to ail appeals whether they come to this Court by writ or in regular order. Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E. 2d 587. See Nichols v. McFarland, 249 N.C. 125, 105 S.E. 2d 294. In order to review his Honor’s ruling on the motion to -strike it would be necessary for this Count to« perform a mapping operation before undertaking a “voyage of discovery” through the record. We will do neither. Pratt v. Bishop, 257 N.C. 486, 126 S.E. 2d 597. However, we 'assume that ¡the motion to «strike was not made because defendant apprehended any prejudice from -the challenged allegations in any hearing before the judge.

Assignment of error No. 7 is to- “the failure of the Court to find facts to the effect that the plaintiff has not sufficient means wherein to subsist during the prosecution of the suit as the basis for the award of alimony pendente lite -under G.S. 50-15.” It iis not necessary to decide whether -this assignment challenges the award to the wife because *54'assignment of -error No. 9 to the entry of the order allowing plaintiff temporary -alimony raises the question whether .tfltie facts found are sufficient to- support the order. Clark v. Freight Carriers, 247 N.C. 705, 102 S.E. 2d 252; 1 Strong, N. C. Index, Appeal & Error § 21.

The judge found these- facts: On August 12, 1962 the defendant “willfully and wrongfully abandoned -and deserted the .plaintiff and has willfully failed and refused to provide adequate support for plaintiff and 'the 'children in keeping with his financial ability -and station in life 'and before, iat -and since said time has -offered such indignities to the person of the plaintiff -as to miak-e her -condition intolerable -and her life miserable as set out in detail in her c-o-mplaint -and amendments thereto and in her other affidavits filed herein, and the Court further finds as a fact and -conclusion ,of law -that the resumption of the marital relationship -on July 15, 1962 voids (the) deed of -separation executed prior -thereto on June 8, 1962.” He further found that plaintiff is without the necessary funds with -which to- prosecute her .action.

Prior’ to 1961 when the statute w-as amended, for a wife -to obtain temporary -alimony under G.S. 50-15, the requirement of the statute was that she set forth in her complaint facts which would entitle her to the relief -demanded, which facts “shall be found by the judge to be true. ...” This Court consistently held that when an award of temporary -alimony wais made under G.S. 50-15 the statute required the judge to find the essential and issuable facts -and set them out in detail so that, upon- -appeal, the -court -could determine from tire facts whether the judge’s -conclusion- that the wife had a right to- alimony was legally 'correct. Easeley v. Easeley, 173 N.C. 530, 92 S.E. 353; Moody v. Moody, 118 N.C. 926, 23 S.E. 933; Griffith v. Griffith, 89 N.C. 113. The count frequently pointed out the difference between G.S. 50-15 and G.S. 50-16 which -contains no requirement that the judge make specific findings with reference to the facts upon which he -bases -his o-rder for temporary -alimony except when the -adultery of tire wife is pleaded in bar. Caudle v. Caudle, 206 N.C. 484, 174 S.E. 304; McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Price v. Price, 188 N.C. 640, 125 S.E. 264.

As amended by Chapter 80 of the Session Laws -of 1961, G.S. 50-15 noiw provides that it shall -be lawful f-o-r the judge to ondea* the husband to pay -alim-ony if the facts set forth in her complaint “shall probably entitle her to the relief demanded.” Apparently, the purpose of this amendment was to eliminate the distinction between G.S. 50-15 and G.S. 50-16 insofar as finding the facts with reference to the truth of the allegations of the -complaint is 'concerned. It removed from G.S. 50-15 the requirement -that the judge make specific findings that the *55facts set forth in the complaint -are true and entitle plaintiff to the ultimate (relief demanded therein as a 'Condition precedent to an award pendente lite. It is noted, -however, -that the amendment does not dispense with the requirement that the judge hear the evidence of both parties and determine in his sound legal discretion whether movant is entitled to the relief sought. Parker v. Parker, post, 176.

The 1961 amendment dad not materially -change the wording of G.S. 50-15 with reference to -the wife’s need for temporary alimony as a requirement for 'an award. After she has satisfied the judge of her right to alimony under the first portion of the statute, it formerly provided that i-f “it appears to the judge of suoh court, either in or out of term, toy the affidavit o>f the complainant, or other proof, that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the necessary and proper expenses'thereof, the judge may order the husband to pay her such alimony 'during the pendency of the suit as appears to him just and proper’. . . .” (Italics ours). The only change which the 1961 -amendment made in that portion of the statute quoted above was to substitute for the italicized words the following: “it shall be lawful for the judge to. . . .” Thus, there is, and has been, no requirement in G.S. 50-15 that the judge shall find specific facts with reference to- the wife’s financial condition.

When the judge, after hearing the evidence upon a motion for temporary alimony in an action instituted under G.S. 50-16, either makes an award of -alimony or declines to make one, it is presumed that he found the facts from the evidence presented to him according to his convictions -about the matter and that -he resolved the crucial issues in favor of tire party who prevailed on the motion. Deal v. Deal, 259 N.C. 489, 131 S.E. 2d 24; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. This presumption now applies in -all respects to -an award under G.S. 50-15.

When the trial judge -allows alimony under this section, and there is evidence sufficient to sustain his action, it is presumed (1) that he found the facts amid resolved them in the wife’s favor and (2) that it appeared to him that,the wife lacked sufficient means on which to subsist during the pendency o-f -the suit. The evidence in this case is sufficient to sustain hi-s Honor’s order.

Nevertheless, as tire court -has from time to- time emphasized, Price v. Price, supra, Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436, where the facts are in dispute, the better practice is for the judge to make specific findings on all material points. Ordinarily the attorney for the prevailing party prepares the judgment. As this case demonstrates, good technique would require that be incorporate findings as to all *56the material facts upon which the judgment is based. Facts found by the judge are binding upon this count if they are supported by any competent evidence notwithstanding the fact that the appellant has offered evidence to the contrary. Mercer v. Mercer, 253 N.C. 164, 116 S.E. 2d 443; Briggs v. Briggs, 234 N.C. 450, 67 S.E. 2d 349. Assignments of error 7 and 9 are overruled.

Assignment of error No. 6 presents this question: Is the award of $500.00 a .month for the support of each child excessive as a matter of law under .the evidence and findings of this case? The evidence of the plaintiff tends to show that prior to. their separation the parties' had enjoyed a very .high standard of living, one in keeping with defendant’s income. They -belonged to the Country Club. In addition to a home on Country Club Drive in Concord, the defendant owned a farm. The -.children, were brought up to love horses, to- ride and to show them. The defendant is, by profession, -a pathologist. He receives a percentage of the net operating income from the Cabarrus Memorial Hospital. The judge found that he has a gross annual income of at least $76,120.53. The plaintiff maintained that his -annual net income is in -excess of $40,000.00. In an affidavit offered at evidence at the ¡hearing, -defendant averred that in 1962 he had -an “expendable income” after taxes of $30,385.65. In 1961 -he declared it to -be $38,369.70.

By affidavit, the plaintiff asserted that in order to live in the manner to which she and the two- children, now aged fifteen and ten respectively, had become 'accustomed -before the separation, she must receive at least $1,500.00 a month. Her itemization of expenses corroborated this figure. The judge found the facts to- be as- set forth in plaintiff’s affidavit and ordered the defendant to pay this amount. Inter alia, the rent .on the home the plaintiff .and the -two. children occupy is $200.00 a month; one of the children is being treated by an orthodontist; .and they still have their two hors-es — -a luxury or advantage which their father had initiated.

The primary obligation for support of a minor child rests upon the father. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E. 2d 113; Lee v. Coffield, 245 N.C. 570, 96 S.E. 2d 726. While -a husband and wife can bind themselves -by a separation agreement “they cannot thus withdraw children of th-e marriage from the protective custody of the court,” Fuchs v. Fuchs, 260 N.C. 635,.....S.E. 2d.....; Story v. Story, 221 N.C. 114, 19 S.E. 2d 136, or deprive a minor .child of support in accordance with the standards established by law. The concensus of the myriad decisions on the subject is- that the measure of the father’s obligation is the child’s needs in relation to the father’s station in life, his pecuniary resources, and his earning -ability honestly exercised. *57 Coggins v. Coggins, 260 N.C. 765, 133 S.E. 2d 700; Bishop v. Bishop, 245 N.C. 573, 96 S.E. 2d 721; De Brauwere v. De Brauwere, 203 N.Y. 460, 96 N.E. 722, 38 L.R.A. (N.S.) 508; 39 Am. Jur., Parent and Child § 36; 67 C.J.S., Parent and Child § 15. The following statement from 3 Lee, North Carolina Family Law § 229 is pertinent:

“. . . . It is frequently said that the parent must supply his minor children with necessaries, but the word 'necessaries’ is a relative and elastic team. Necessaries are not limited to those things which are absolutely necessary to sustain life, but extend to articles which, are suitable in view oif the rank, position, fortune, earning ‘capacity and mode of living of the parent. Articles that might be a luxury to one person may very well be -a necessary to another. The customs and fashions of /the time as to articles in general use may be a -factor to be considered. Many articles which at one time were commonly regarded ais luxuries for the few -have -at a later time become reasonable necessaries for the many. The standard of living has been 'constantly improving. The law requires the parent to -do no more than the ’beet he -can do to support his child in the manner suitable to his station and circumstances.”

Whatever may have been the rule at common law, a father’s duty of support today does not end with the /furnishing of mere necessities if he de able to afford more. In addition- to the actual needs -of the child, a father ha-s a legal duty to give his children -those advantages -which are reasonable -considering his financial condition -and his position in society.

In Hecht v. Hecht, 189 Pa. Super., 276, 283, 150 A. 2d 139, 143, Woodside, J., observed:

“Children of wealthy parents are entitled to -the educational advantages of travel, private lessons in music, ‘drama, swimming, horseback riding, and other activities in which they show interest ■and ability. ... It is possible that a child with nothing more ■than a house to shelter him, a coat to keep him warm .and sufficient food to keep him healthy will -be happier and more successful than a child who has all the ‘advantage®,’ but most parents strive ■and sacrifice -to give their children ‘advantages’ which cost money. . . . Much of the special education and .training which will be of value to people throughout life must be given them when they are young, or be forever lost to them.”

What amount is reasonable for a child’s support is to be determined with reference to the special circumstances of the particular parties. *58Things Which might properly ibe deemed necessaries by the family of a man of large income would mot ibe -so. regarded in the family of a mam whose earnings were small amri who had mot been able to- accumulate any savings. Coggins v. Coggins, supra. In detmnining that amount which -is reasonable, the trial judge has a wide discretion with which this court will not interfere in the absence of a manifest abuse. Harris v. Harris, 258 N.C. 121, 128 S.E. 2d 123; Wright v. Wright, 216 N.C. 693, 6 S.E. 2d 555.

It is never the purpose of a support order to> ’divide the father’s wealth oi* to’ distribute his estate. Furthermore, even though the father be a man,’ of great wealth, an excessive award which would encourage extravagant expenditures either by ,tihe child or in his behalf would not be in his best interest.

As the court pointed out in Libby v. Arnold, 161 N.Y.S. 2d 798, 803:

“ 'Additional advantages’ 'do mot justify providing luxuries or fantastic motions of style adapted to a tempo of living not normal for the stable, conservative, natural upbringing of a child according to the comfort, dignity and manner in which the father over the years has been’ accustomed to live. ‘Additional .advantages’ do not mean that even where a father has unlimited means, extravagant demands must be created for the child. The Court may, in its discretion .and judgment, on the facts adduced, after as complete a disclosure as is reasonably and realistically available of the essential elements that reveal true insight into the father’s .income, means and station in- life, evaluate and determine the fair measure of support to be ordered.”

There is nothing .in this record to indicate that Judge McLaughlin did not evaluate and determine “tire fair measure of support” when he fixed tire .allowances in this order.

We have not overlooked the fact that tire allowances -are more'tlran double tire amount which the parties agreed upon in -the deed of separation. When a wife petitions the judge to increase the amount which the Court itself has previously fixed for the support of minor children, dhe assumes the burden of showing that circumstances' have changed between tire time of the order' and the time of the hearing upon the petition for the increase. In such case, she must show either that the need of the children or the cost of their support has increased, or that the ability of the father to pay has increased if the amount originally fixed was inadequate because of the father's inability to- pay more. However, .prior to the entiy of the order’ appealed .from in this case, the defendant’s support payments for the children had been made pur-*59suaut to the teams of a deed of separation which was in no way binding m the count -insofar as it applied to the -children. Therefore, plaintiff’s onlly burden' was to show the amount reasonably required for the support of the children1 at the time of the hearing. The amount which the-parties fixed on June 8,1962 was merely evidence for the judge to consider, along with all the other evidence in the ease, in determining a reasonable amount for support of the ichdldren.

In Fuchs v. Fuchs, supra, this Clour,t held that in the absence of evidence to the contrary, there is a presumption that the amount mutually agreed upon in a deed of separation is just land reasonable and that a judge is not warranted in ordering -an increase in the absence of any evidence of the need of such increase. Obviously an award for children’s support should never be based solely on the ability of a wealthy father to pay. -Such -.action would disregard both the rights of the father and the welfare of the ichildren. Here, however, there is evidence that -the amount agreed upon in the deed of separation was -inadequate, iconsidering the -inioome of the defendant, the mode of life to- which he had accustomed the children prior to the separation, and -the station in •life of the .parties. In view of all the 'circumstances disclosed by the evidence in ¡this case we canmio-t say that Judge McLaughlin abused hils judicial discretion' in fixing the amount he did for the support of the defendant’s children. There is no -contention that the allowance for the plaintiff herself is excessive. Assignment of error No. 6 is overruled.

The order of the court below i-s