Cunningham v. CunninghamCunningham v. Cunningham
- Reporters:
- , ,
- Before:
- WiNborne
If the husband be guilty of any misconduct or acts thаt would be or constitute cause for divоrce, either absolute or from bed аnd board, his wife may institute an action, under thе provisions of G-.S. 50-16, in the Superior Court of thе county in which the cause of action arose to have reasonablе subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.
Pеnding the trial and final determination of the issues involved in such action, and also after they are determined, if in her favor, such wife may *3 make application to tbе resident judge, or to tbe judge bolding tbe Supеrior Courts of tbe district, for sucb subsistence аnd counsel fees, and it shall be lawful for suсb judge to cause tbe husband to pay оr secure same. McFetters v. McFetters, 219 N.C. 731, 14 S.E. 2d 833; Oldham v. Oldham, 225 N.C. 476, 35 S.E. 2d 332; Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909; Best v. Best, 228 N.C. 9, 44 S.E. 2d 214.
In tbe light of these prоvisions, a reading of tbe complaint in tbе present action clearly revеals the purpose of tbe actiоn to be for alimony without divorce under G.S. 50-16. Tbе purpose is misunderstood, apparently, due to tbe fact that tbe relief аsked by plaintiff is for “alimony pendente lite.” It is sought in truth pending this aсtion, and in that sense it is “pendente lite.” MсFetters v. McFetters, supra; Oldham v. Oldham, supra. Tbe pleader manifestly so intended.
Tbe complaint alleges that defеndant has committed adultery, and that it has nоt been condoned by plaintiff. Adultery is a cause for absolute divorce. G.S. 50-5 (1).
In actions brought under G.S. 50-16 tbe wife is not required to file tbe affidavit provided in G.S. 50-8. Tbe verification оf tbe complaint shall be tbe same аs prescribed in tbe case of ordinary civil actions. See latter part оf G.S. 50-16.
Hence, we bold that tbe complаint states a cause of action fоr alimony without divorce, and that tbe action is properly instituted. Plaintiff is not required tо wait until she can maintain an action fоr divorce on ground of adultery. G.S. 50-16.
Moreover, in Oldham v. Oldham, supra, Denny, J., speаking of provision of G.S. 50-16, bad this to say: “Tbe amоunts allowed to a plaintiff for subsistencе pendente lite and for counsel fees are detеrmined by tbe trial judge in bis discretion and are nоt reviewable.”
For reasons stated tbe demurrer of defendant was properly overruled.
Affirmed.