Cabe v. Cabe

201 S.E.2d 203, 20 N.C. App. 273, 1973 N.C. App. LEXIS 1537

• Court: Court of Appeals of North Carolina
• Decided: December 19, 1973
• Docket: No. 7322DC514
• Status: Published

Opinion

BROCK, Chief Judge.

G.S. 50-16.3 establishes the requirements for an award of alimony pendente lite. In the first place the applicant must he a dependent spouse. Once it is established that the applicant is a dependent spouse it must appear that such spouse: (1) prima facie, is entitled to the relief demanded in the action (i.e., absolute divorce, divorce from bed and board, annulment, or alimony without divorce) ; and (2) does not have sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.

Conceding, without deciding, that defendant in this case has established, prima facie, the grounds upon which she bottoms her action for alimony without divorce, she has failed to offer evidence to show that she is a dependent spouse or to show that she does not have sufficient means whereon to subsist during this action and to defray its necessary expenses.

The evidence offered upon the hearing shows, and the judgment appealed from finds, the following with respect to the wife’s finances:

She has a net take home pay of $75.00 per week ($300.00, plus, per month).

She has expenses, computed on a monthly basis, of home payment $101.90, auto insurance $6.50, and property taxes $8.50 (a total of $116.90 per month).

It seems obvious that she has other monthly expenses but the court is not permitted to speculate, as to the amount. The courts are not blind to the fact that day to day living is expensive, but each person’s situation is different. Each case presents different circumstances and the burden is upon the applicant for alimony, or alimony pendente lite, to offer evidence to establish the need in each case.

Reversed and remanded.

Judges Britt and Baley concur.