Davis v. Davis

240 S.E.2d 488, 35 N.C. App. 111, 1978 N.C. App. LEXIS 2875

• Court: Court of Appeals of North Carolina
• Decided: January 17, 1978
• Docket: No. 7721DC149
• Status: Published

Opinion

HEDRICK, Judge.

The single contention brought forward and argued in defendant’s brief is that the court erred in concluding that plaintiff, the dependent spouse, did not have “sufficient means wherein [sic] to subsist during the pendency of this action and to defray the necessary expenses thereof ...”

The controlling statute, G.S. 50-16.3(a), provides in pertinent part as follows:

“A dependent spouse who is a party to an action for . . . alimony without divorce, shall be entitled to an order for alimony pendente lite when:

(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pentente lite is made, and

(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.”

Once the plaintiff is initially determined to be a “dependent spouse,” as defined in G.S. 50-16.1(3), then the conditions in subsections (1) and (2) of the above statute must be met. Cannon v. Cannon, 14 N.C. App. 716, 189 S.E. 2d 538 (1972). In this case the parties have stipulated as to the condition imposed by subsection (1). Similarly, the defendant in his brief does not challenge the conclusion of the trial judge that the plaintiff is a “dependent spouse” within the definition of G.S. 50-16.1(3). Indeed, this conclusion is compelled by the findings of fact. Thus, the only issue for this Court to resolve is whether the trial judge has properly concluded that the second condition above has been satisfied by plaintiff.

Defendant argues that the plaintiff’s savings account of $21,000 demonstrates that she does in fact have sufficient funds upon which to subsist during the pendency of this action. It has never been held by the courts of this State that the separate estate of a dependent spouse precludes an award of alimony pendente lite. Indeed, our courts have held that it is not necessary that a dependent spouse “be impoverished” before she is entitled to an award of alimony pendente lite. Peeler v. Peeler, 7 N.C. App. 456, 462, 172 S.E. 2d 915, 919 (1970). See also Mercer v. Mercer, 253 N.C. 164, 116 S.E. 2d 443 (1960); Cannon v. Cannon, supra.

In the present case the defendant’s income is approximately four times that of the plaintiff. Surely, we cannot say that under these circumstances the dependent spouse must use her meager savings during the pendency of this action while the defendant enjoys an income of four times that of his wife, and a savings account practically equal to that of his wife. We conclude that the findings of fact support the conclusions of law which in turn support the order for alimony pendente lite and counsel fees.

Affirmed.

Judges Morris and Arnold concur.