Foster v. Foster

Court of Appeals of North Carolina

Foster v. Foster

214 S.E.2d 264, 25 N.C. App. 676, 1975 N.C. App. LEXIS 2368

Court of Appeals of North Carolina·Decided May 7, 1975·No. No. 751DC176·Published·Cited by 1 cases

Opinion

VAUGHN, Judge.

Plaintiff seeks alimony, alimony pendente lite and counsel fees. Defendant pleaded his spouse’s adultery in bar of her right to recover. The order from which defendant appeals contains no finding on the issue.

When adultery is pleaded in bar of a demand for alimony or alimony pendente lite, an award will not be sustained in the absence of a finding of fact on the issue of adultery in favor of the party seeking the award. Austin v. Austin, 12 N.C. App. 286, 183 S.E. 2d 420. The court also failed to find facts to support the award of counsel fees. The judgment is vacated and remanded.

Vacated and remanded.

Judges Britt and Parker concur.

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VAUGHN, Judge.

Plaintiff seeks alimony, alimony pendente lite and counsel fees. Defendant pleaded his spouse’s adultery in bar of her right to recover. The order from which defendant appeals contains no finding on the issue.

When adultery is pleaded in bar of a demand for alimony or alimony pendente lite, an award will not be sustained in the absence of a finding of fact on the issue of adultery in favor of the party seeking the award. Austin v. Austin, 12 N.C. App. 286, 183 S.E. 2d 420. The court also failed to find facts to support the award of counsel fees. The judgment is vacated and remanded.

Vacated and remanded.

Judges Britt and Parker concur.

Foster v. Foster, 214 S.E.2d 264, 25 N.C. App. 676, 1975 N.C. App. LEXIS 2368 (N.C. Ct. App. 1975).

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Opinion

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