24 N.C. App. 119 | N.C. Ct. App. | 1974
The husband assigns as error evidence introduced by the wife pertaining to settlement negotiations which had been conducted between the parties without a final agreement being consummated. While the rules of evidence are not as strictly enforced where the judge hears a case without the intervention of a jury, nevertheless, evidence which is obviously incompetent should not be permitted even in such a hearing. 2 Stansbury’s N. C. Evidence, § 180 (Brandis Rev. 1973). In the instant case it was error to permit the wife to testify as to settlement negotiations which had been conducted between the parties in an effort to compromise the case.
The husband also assigns as error a purported finding of fact as follows:
“2. That the defendant is a dependent spouse and the plaintiff the supporting spouse within the meaning of Chapter 50 of the North Carolina General Statutes.”
This did not amount to a finding of fact and was no more than a conclusion which was unsupported by a finding of fact. Presson v. Presson, 13 N.C. App. 81, 185 S.E. 2d 17 (1971). The judgment in the instant case was deficient in other aspects for that there were insufficient findings of fact as to the husband’s earning capacity and ability to pay alimony and support. Neither were there appropriate findings as to what were the reasonable needs of the children for their health, education and maintenance, nor were there appropriate findings of fact as to the reasonable counsel fees of the wife and of the necessity that same be paid by the husband rather than by the wife from her own sources of income. Manning v. Manning, 20 N.C. App. 149, 201 S.E. 2d 46 (1973) ; Morgan v. Morgan, 20 N.C. App. 641, 202 S.E. 2d 356 (1974).
The judgment and order appealed from is vacated and the cause remanded for a new hearing and determination.
Error and remanded.