23 N.C. App. 220 | N.C. Ct. App. | 1974
The defendant argues on appeal that the trial court erred in finding that the plaintiff was entitled to alimony 'pendente lite under G.S. 50-16.3 and counsel fees under G.S. 50-16.4. In the alternative, defendant argues that the terms of the trial court’s award exceeded its discretion.
It appears from the court’s order that the defendant is required to pay $25.00 per week for the support of a child who was not eighteen years of age at the time of the award but became eighteen pending- appeal. As defendant states in his brief, the correctness of the child support order is now moot.
The financial ability of the husband to pay is a major factor in the determination of the amount of subsistence to be awarded. Schloss v. Schloss, 273 N.C. 266, 160 S.E. 2d 5 (1968). A spouse who is not entitled to alimony pendente lite is also not entitled to an award of counsel fees. Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E. 2d 468 (1972). “The remedy of subsistence and counsel fees pendente lite is intended to enable the wife to maintain herself according to her station in life and to employ counsel to meet her husband at the trial upon substantially equal terms.” Brady v. Brady, 273 N.C. 299, page 304, 160 S.E. 2d 13 (1968) ; Myers v. Myers, 270 N.C. 263, 154 S.E. 2d 84. There is no element of punishment involved. Lemons v. Lemons, 22 N.C. App. 303, 206 S.E. 2d 327 (1974). In order for the plaintiff to be awarded alimony pendente lite in the case at bar, it must appear that she is the dependent spouse, that she is entitled to the relief she demands and that she is without means to subsist during the pendency of this action. Hogue v. Hogue, 20 N.C. App. 583, 202 S.E. 2d 327 (1974). Subdivision (1) and (2) under G.S. 50-16.3 (a) are conjunctive, and the grounds stated in both subdivisions must be found to exist before alimony pendente lite may be awarded. Hogue v. Hogue, supra.
According to the record, the plaintiff and her daughter have living expenses of $400.00 per month. Using this figure, the wife’s expenses clearly exceed her income. Pending appeal, the daughter became age eighteen. The wife’s expenses alone were not set out by the trial court, and there was no finding that the daughter is incapable of self-support. These findings, at least, were necessary to support the court’s order.