Fore v. Fore

Court of Appeals of North Carolina

Fore v. Fore

189 S.E.2d 520, 15 N.C. App. 226, 1972 N.C. App. LEXIS 1875

CourtCourt of Appeals of North Carolina

DecidedJune 28, 1972

DocketNo. 7211DC322

StatusPublished

This text of 189 S.E.2d 520 (Fore v. Fore) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fore v. Fore, 189 S.E.2d 520, 15 N.C. App. 226, 1972 N.C. App. LEXIS 1875 (N.C. Ct. App. 1972).

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Opinion

BRITT, Judge.

Defendant’s sole exception and assignment of error is to the signing and entry of the judgment. In Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E. 2d 363 (1968) we find: “This sole assignment of error to the signing of the judgment presents the face of the record proper for review, but review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form.” See also Morris v. Perkins, 11 N.C. App. 152, 180 S.E. 2d 402 (1971), cert. den. 278 N.C. 702, 181 S.E. 2d 602.

In the case at bar we hold that the facts found by the trial court support the judgment, that the judgment is regular in form, and that error does not appear on the face of the record.

Defendant relies on our decision in Davis v. Davis, 11 N.C. App. 115, 180 S.E. 2d 374 (1971). The cases are clearly distinguishable. In the instant case we are dealing with a judgment awarding permanent alimony following a trial of the action on its merits while in Davis, the appeal was from an order awarding alimony pendente lite. As was said in Davis, to obtain alimony pendente lite the dependent spouse must show, among other things, that he or she is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and that he or she has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. G.S. 50-16.3.

The decision in Davis turned on the fact that the plaintiff did not show that she “has not sufficient means whereon to subsist during the prosecution ... of the suit and to defray the necessary expenses thereof.” In the present case, the trial [228]*228being on the merits of the action, it was obviously not necessary that plaintiff show that she did not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof.

The judgment appealed from is

Affirmed.

Chief Judge Mallard and Judge Campbell concur.

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BRITT, Judge.

Defendant’s sole exception and assignment of error is to the signing and entry of the judgment. In Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E. 2d 363 (1968) we find: “This sole assignment of error to the signing of the judgment presents the face of the record proper for review, but review is limited to the question of whether error of law appears on the face of the record, which includes whether the facts found or admitted support the judgment, and whether the judgment is regular in form.” See also Morris v. Perkins, 11 N.C. App. 152, 180 S.E. 2d 402 (1971), cert. den. 278 N.C. 702, 181 S.E. 2d 602.

In the case at bar we hold that the facts found by the trial court support the judgment, that the judgment is regular in form, and that error does not appear on the face of the record.

Defendant relies on our decision in Davis v. Davis, 11 N.C. App. 115, 180 S.E. 2d 374 (1971). The cases are clearly distinguishable. In the instant case we are dealing with a judgment awarding permanent alimony following a trial of the action on its merits while in Davis, the appeal was from an order awarding alimony pendente lite. As was said in Davis, to obtain alimony pendente lite the dependent spouse must show, among other things, that he or she is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and that he or she has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. G.S. 50-16.3.

The decision in Davis turned on the fact that the plaintiff did not show that she “has not sufficient means whereon to subsist during the prosecution ... of the suit and to defray the necessary expenses thereof.” In the present case, the trial [228]*228being on the merits of the action, it was obviously not necessary that plaintiff show that she did not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof.

The judgment appealed from is

Affirmed.

Chief Judge Mallard and Judge Campbell concur.

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189 S.E.2d 520, 15 N.C. App. 226, 1972 N.C. App. LEXIS 1875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fore-v-fore-ncctapp-1972.

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