Hill v. Hill

Court of Appeals of North Carolina

Hill v. Hill

219 S.E.2d 273, 27 N.C. App. 423, 1975 N.C. App. LEXIS 1875

CourtCourt of Appeals of North Carolina

DecidedNovember 5, 1975

DocketNo. 7519DC527

StatusPublished

This text of 219 S.E.2d 273 (Hill v. Hill) 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.

Bluebook

Hill v. Hill, 219 S.E.2d 273, 27 N.C. App. 423, 1975 N.C. App. LEXIS 1875 (N.C. Ct. App. 1975).

Pincite

Opinion

BRITT, Judge.

Defendant contends that the court did not make sufficient-findings of fact to support its order. We agree with this contention.

G.S. 50-16.3 provides in pertinent part that 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)' [i]t 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 pendente lite is made, and (2) [i]t 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.”

G.S. 50-16.4 authorizes the court to enter an order for reasonable counsel fees for the benefit of a dependent spouse who is entitled to alimony pendente lite pursuant to G.S. 50-16.3. G.S. 50-16.8 (f) provides that when a party applies for alimony pendente lite and a hearing is held, the judge shall find the facts from the evidence presented.

| . Specifically, defendant argues that before the court can áwárd temporary alimony and counsel fees, in addition to other findings, it must make findings of fact as to whether plaintiff qualifies for relief under G.S. 50-16.3 and cites Blake v. Blake, 6 N.C. App. 410, 170 S.E. 2d 87 (1969) ; Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971) ; Manning v. Manning, 20 N.C. App. 149, 201 S.E. 2d 46 (1973) ; Newsome v. Newsome, 22 N.C. App. 651, 207 S.E. 2d 355 (1974). The argument has merit.

In her complaint, plaintiff alleged that for some time after their marriage on 30 June 1973 the parties lived happily together, but thereafter defendant began using alcoholic beverages to excess, cursing and otherwise abusing plaintiff, and one occasion assaulted her. She further alleged that she was without means on which to subsist during the pendency of this action and was without funds to properly prosecute her action. Although plaintiff presented evidence supporting, and defendant presented evidence contradicting, these allegations the court made no findings with respect to them.

[425]*425For failüre of the court to make findings of fact on vital questions, the order appealed from must be vacated and the cause remanded for further proceedings.

Order vacated and cause remanded.

Judges Vaughn and Arnold concur.

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BRITT, Judge.

Defendant contends that the court did not make sufficient-findings of fact to support its order. We agree with this contention.

G.S. 50-16.3 provides in pertinent part that 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)' [i]t 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 pendente lite is made, and (2) [i]t 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.”

G.S. 50-16.4 authorizes the court to enter an order for reasonable counsel fees for the benefit of a dependent spouse who is entitled to alimony pendente lite pursuant to G.S. 50-16.3. G.S. 50-16.8 (f) provides that when a party applies for alimony pendente lite and a hearing is held, the judge shall find the facts from the evidence presented.

| . Specifically, defendant argues that before the court can áwárd temporary alimony and counsel fees, in addition to other findings, it must make findings of fact as to whether plaintiff qualifies for relief under G.S. 50-16.3 and cites Blake v. Blake, 6 N.C. App. 410, 170 S.E. 2d 87 (1969) ; Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971) ; Manning v. Manning, 20 N.C. App. 149, 201 S.E. 2d 46 (1973) ; Newsome v. Newsome, 22 N.C. App. 651, 207 S.E. 2d 355 (1974). The argument has merit.

In her complaint, plaintiff alleged that for some time after their marriage on 30 June 1973 the parties lived happily together, but thereafter defendant began using alcoholic beverages to excess, cursing and otherwise abusing plaintiff, and one occasion assaulted her. She further alleged that she was without means on which to subsist during the pendency of this action and was without funds to properly prosecute her action. Although plaintiff presented evidence supporting, and defendant presented evidence contradicting, these allegations the court made no findings with respect to them.

[425]*425For failüre of the court to make findings of fact on vital questions, the order appealed from must be vacated and the cause remanded for further proceedings.

Order vacated and cause remanded.

Judges Vaughn and Arnold concur.

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219 S.E.2d 273, 27 N.C. App. 423, 1975 N.C. App. LEXIS 1875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hill-ncctapp-1975.

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