55 S.E.2d 195 | N.C. | 1949
The plaintiff, Mary Ellen Williams, sued her husband, the defendant, for alimony without divorce under G.S.
The plaintiff made application for an allowance of counsel fees and temporary alimony from the earnings of defendant pending the trial and final determination of the issues involved in the action. When the application came on for hearing before Judge Shuford, the plaintiff and the defendant offered conflicting testimony by affidavits and witnesses with respect to the plea that the plaintiff had been guilty of adultery. Judge Shuford entered an order awarding plaintiff counsel fees and alimony pending the action without finding the facts upon this plea, and the defendant excepted to the order and appealed, assigning errors.
The defendant expressly pleaded the adultery of the plaintiff in bar of her claim to alimony and offered testimony in support of his plea. In consequence, the order of the court awarding temporary alimony to the plaintiff without finding the facts with respect to this plea ignores the provision of the statute regulating independent suits for alimony without divorce, which was adopted in 1923 and which reads as follows: "In all applications for alimony under this section it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees." G.S.
Error.
