183 N.C. 139 | N.C. | 1922
The defendant admits, not only his moral default in abandoning his wife, but as well his legal liability' to make suitable provision for her maintenance; but he insists that the judgment of the
1. The payments decreed are unwarranted and excessive.
2. Subjecting to a lien the defendant’s interest in land is without warrant of law.
3. The judgment violates Art. X, sec. 2, of the Constitution.
4. The defendant has only a defeasible fee in the lands known as the Dickens place.
As to the first objection the defendant admits that ordinarily the amount allowed for subsistence under section 1667 rests in the sound discretion of the court. Gram v. Gram, 116 N. C., 288; Bradford v. Reed, 125 N. C., 311; Matthews v. Fry, 143 N. C., 384. But he argues that in view of the limitation prescribed in section 1665 and of the actual value of the defendant’s property the amount of the payments imposed constitutes an abuse of the court’s discretion. It should be noted that the limitation to one-third of the net annual income from the estate (section 1665) applies when the court adjudges the husband and the wife divorced from bed and board, but not when the wife institutes the proper proceeding for alimony pendente lite under section 1666 or for a reasonable subsistence under section 1667. The Legislature has preserved this distinction through the entire statutory history of the law of divorce and alimony in this State, beginning with the act of 1814, and has evidently intended to empower the courts to make in each case such decree as the peculiar circumstances might demand. His Honor, therefore, was not required in this proceeding to confine the subsistence to one-third part of the defendant’s net annual income. Nor can we conclude that in any respect there was abuse of discretion. The plaintiff testified at the hearing; the defendant did-not testify, but introduced his father. Besides the desertion of his wife, the defendant admitted his adultery, and in addition, that the only question for his Honor was the subsistence to be allowed. His Honor inquired into the defendant’s financial condition and found the facts. Section 1667 provides that the order of allowance may be modified or vacated; but the application must be made in the proper jurisdiction so that the circumstances may be inquired into and the merits of the case determined. The first objection, we conclude, cannot be sustained.
Concerning the second, the defendant contends that the court, while in proper instances it may sequester a part of the husband’s property for alimony, has no power to deprive the husband of the title and possession of his real estate. This contention is based on the legal proposition that where alimony is allotted in specific property the title to such
Tbe defendant contends tbat as against tbe amount allowed for tbe plaintiff’s subsistence and expenses be is entitled to bis homestead or personal property exemption. Waiving tbe plaintiff’s contention that tbe question is not properly presented upon tbe record, we think tbat tbe defendant’s objection is without merit. Tbe defendant’s obligation "to support tbe plaintiff during tbe existence of tbe marital relation is not a “debt” within tbe meaning of Art. X, secs. 1 and 2, of tbe Consti
We are not able to see how the last objection.can benefit the defendant. If his estate should be sold as a determinable fee, how the judgment rendered would cause the defendant to suffer loss by .reason of such sale is not easily perceived.
Upon the record we find no error, and his Honor’s judgment is therefore affirmed. Let this be certified.
Affirmed.