134 S.E.2d 174 | N.C. | 1964
Anne McCoy PARKER
v.
William Marvin PARKER.
Supreme Court of North Carolina.
*175 George M. Anderson, Raleigh, for plaintiff appellee.
Emanuel & Emanuel, Raleigh, for defendant appellant.
PER CURIAM:
Defendant's assignment of error No. 3 must be sustained. G.S. § 50-16 does not authorize the judge, in passing on a motion for alimony pendente lite, to award a wife subsistence and counsel fees merely because she and her husband have separated. A wife who has abandoned her husband without just cause or who, by her wrongful conduct has forced him to leave home, has no right to alimony. Reece v. Reece, 232 N.C. 95, 59 S.E.2d 363. The instant case is controlled by Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283, in which Denny, J., (now C. J.) said:
"* * * (I)t is expressly provided in G.S. § 50-15, `[T]hat no order allowing alimony pendente lite shall be made unless the husband shall have had five days' notice thereof, and in all cases of application for alimony pendente lite under this or § 50-16, whether in or out of term, it shall be admissible for the husband to be heard by affidavit in reply or answer to the allegations of the complaint'.
"Consequently, in passing on such motion the judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. (Citations omitted) And where it affirmatively appears the defendant was not permitted to offer evidence which was pertinent to the allegations of the complaint, the exception thereto will be sustained. (Citation omitted)."
Upon another hearing, when the evidence of both parties has been heard and considered, should the judge conclude that the plaintiff is entitled to alimony pendente lite and that the defendant is deliberately refusing to exercise his capacity to earn, specific findings with reference to this situation will be in order. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912.
The defendant is entitled to a rehearing on the motion and it is so ordered.
Error and remanded.
