4 S.E.2d 616 | N.C. | 1939
In this case plaintiff sued for alimony without divorce under C. S., 1667, and applied for subsistence and counsel fees pendente lite. From an order making such allowance, defendant appealed.
The power of the judge to allow alimony and attorneys' fees to the wifependente lite in divorce cases and to find the necessary facts for his guidance in the exercise of that power without the aid of a jury has been long recognized. C. S., 1666, Michie's Code of 1935. Observe historical note. Formerly, in this State, alimony without divorce was a matter of equity jurisdiction. Crews v. Crews,
The power to make allowances to the wife for support and counsel feespendente lite in actions for alimony without divorce was given by chapter 24, Public Laws of 1919, Michie's Code of 1935, section 1667. *299 The defendant challenges this statute as unconstitutional in that, as he contends, it deprives him of a property right without trial by jury, in contravention of the above cited section of the Constitution.
While, of course, it is the privilege of the defendant, if occasion arises, to challenge the constitutionality of both laws, it is difficult to see any distinction in principle between the power given under C. S., 1667, and that exercised without question under the former laws relating to divorce. Compare the following cases, some of which relate to alimonypendente lite in divorce cases, and others to allowances for support and counsel fees pendente lite in actions for alimony without divorce: Barbeev. Barbee,
The power to make these allowances pending the litigation is based, in part at least, on the duty of the husband to support the wife until she has been definitely deprived of the right to such support by her own act or the force of law. Allegation by the husband of some cause which he deems might relieve him does not automatically terminate the duty, even when the gravamen of the action is itself alimony. When facts are investigated and findings made as a guide to the court in the exercise of statutory power to make these allowances, they do not affect the ultimate rights of the parties and do not require reference to a jury. Indeed, it has been held that under C. S., 1667 — that is, in actions for alimony without divorce — where the complaint is sufficient in its allegations, the facts need not be found. Price v. Price,
In Holloway v. Holloway,
To summarize, the allowances pendente lite form no part of the ultimate relief sought, do not affect the final rights of the parties, and the power of the judge to make them is constitutionally exercised without the intervention of the jury.
The order of the court below is
Affirmed.