Blair v. Blair

44 N.C. App. 605 | N.C. Ct. App. | 1980

ARNOLD, Judge.

Plaintiff contends that there appears in the record no evidence to support the trial court’s finding that plaintiff abandoned defendant. In this he is correct. By defendant’s own testimony she “fully agreed” that the parties would purchase a condominium and plaintiff would move there and live separately from her. However, since there is sufficient evidence to support the finding that plaintiff committed indignities making defendant’s condition intolerable, an adequate ground to support an award of alimony pendente lite, G.S. 50-16.3(a)(l) and G.S. 50-7(4), the error as to abandonment is harmless.

Plaintiff argues that the award of alimony pendente lite must be reversed because the trial court made no findings as to the amount needed by plaintiff to subsist during the pendency of this action. Plaintiff relies on Briggs v. Briggs, 21 N.C. App. 674, 205 S.E. 2d 547 (1974), but that case is distinguishable upon its facts. In Briggs, the court found the husband to have a monthly income of $1533, and ordered that he pay more than $1000 per month for the wife and two minor children. Under those circumstances, we observed that the trial court had appeared to ignore the fact that the husband must also exist during the pendente lite period. Here, however, the court found that plaintiff has a gross annual income in excess of $45,000, and awarded defendant $8,500 per year as alimony pendente lite. Plaintiff does not argue that he has actually been left with an amount insufficient for his needs. We find no merit in this assignment of error.

Plaintiff bases his attack upon the amount of alimony pendente lite awarded on the fact that the document detailing defendant’s living expenses was never formally offered into evidence. However, the document was clearly before the trial court, the trier of fact, since defendant’s expenses are set out in detail in his order. And it is clear from plaintiff’s cross-examination of defendant that plaintiff’s counsel had the document before him. We find no prejudice to plaintiff from the technical error of defendant’s failing to enter the document into evidence, and we decline to reverse upon that ground. Furthermore, the amount of alimony pendente lite is to be determined by the trial court, G.S. 50-16.3(b) and 5046.5(a), and we find no abuse of discretion here.

Plaintiff is correct that the award of $750 attorney fees is insufficiently based. G.S. 50-16.4 provides for the awarding of “reasonable” counsel fees. Here, as in Austin v. Austin, 12 N.C. App. 286, 296, 183 S.E. 2d 420, 427 (1971), the order “contains no findings of fact, such as the nature and scope of the legal services rendered, the skill and time required, et cetera, upon which a determination of the requisite reasonableness could be based.” For this reason, this portion of the award must be reversed and remanded for further hearing.

We need not discuss plaintiff’s further assignments of error. The order of the trial court is

Affirmed in part and reversed and remanded in part.

Judges CLARK and ERWIN concur.