ANNE McKOY PARKER v. WILLIAM MARVIN PARKER, 261 N.C. 176
Opinion
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 baa ¡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, ‘That no order allowing alimony pendente lite shall be made unless the husband shall have had five days notice thereof, and in all oases of application for alimony pendente lite 'Under this or
section 50-16, whether .in ¡or out of term, it shall 'be permissible for the husband to be heard ¡by ¡affidavit in -reply or -answer to the lalleg-ati'onis 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 n-ot ¡the movant iis 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.
Loading document…