Loflin v. Loflin

25 N.C. App. 103 | N.C. Ct. App. | 1975

BROCK, Chief Judge.

In order for a spouse to be entitled to alimony, alimony pendente lite, or counsel fees, that spouse must be a dependent spouse. Little v. Little, 18 N.C. App. 311, 196 S.E. 2d 562 (1973). The burden of proving dependency is upon the spouse asserting the claim for alimony or alimony pendente lite. Under G.S. 50-16.1(3) the dependency of the spouse asserting the claim may be established by proof that such spouse is either (a) actually substantially dependent upon the other spouse for his or her maintenance and support, or (b) substantially in need of maintenance and support from the other spouse.

The trial judge found that “there was no evidence introduced that plaintiff was substantially dependent upon the defendant for her maintenance and support.” If this finding may be interpreted as a finding that plaintiff is not substantially dependent upon defendant for her maintenance and support, it nevertheless ignores the alternative given to plaintiff to prove that she is substantially in need of maintenance and support from the defendant. Proof of either would qualify her as a dependent spouse.

We express no opinion upon the evidence presented. We merely hold that the findings by the trial judge do not resolve the issue of whether plaintiff is a dependent spouse within the alternative definitions provided by G.S. 50-16.1(3).

The order appealed from must be vacated and the cause remanded to the District Court for a new hearing upon plaintiff’s application for alimony pendente lite and counsel fees.

Vacated and remanded.

Judges Hedrick and Clark concur.