Hogue v. Hogue

Court of Appeals of North Carolina

Hogue v. Hogue

202 S.E.2d 327, 20 N.C. App. 583, 1974 N.C. App. LEXIS 2498

CourtCourt of Appeals of North Carolina

DecidedFebruary 6, 1974

DocketNo. 7421DC1

StatusPublished

Cited by2 cases

This text of 202 S.E.2d 327 (Hogue v. Hogue) 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

Hogue v. Hogue, 202 S.E.2d 327, 20 N.C. App. 583, 1974 N.C. App. LEXIS 2498 (N.C. Ct. App. 1974).

Pincite

Opinion

MORRIS, Judge.

Defendant’s sole assignment of error is to the trial court’s denial and continuance of the motion for alimony and counsel fees pendente lite after having found that the defendant was the dependent spouse and the plaintiff was the supporting spouse. We hold that the motion was properly denied.

G.S. 50-16.3 provides in pertinent part:

“ (a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or 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 pendente 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.”

It is clear from the face of this statute that in order for defendant to be awarded alimony pendente lite, it must appear that she is the dependent spouse, that she is entitled to the relief she demands and that she is without means to subsist during the pendency of this action. Rickert v. Rickert, 282 N.C. 373, 193 S.E. 2d 79 (1972). The two subdivisions of section (a) are conjunctive; thus, the grounds stated in both subdivisions must be found to exist before alimony pendente lite may be awarded. Presson v. Presson, 13 N.C. App. 81, 185 S.E. 2d 17 (1971).

■ It is not necessary that we consider the questions of the defendant’s dependency or whether she is entitled to relief. Her pleadings have stated in no uncertain terms that she has subsisted for a number of years without financial assistance of plaintiff. Defendant has failed to allege facts sufficient to show [589]*589pursuant to G.S. 50-16.3 (a) (2) that she has not sufficient means to subsist during the pendency of the action and to defray the necessary expenses thereof. The order denying support and counsel fees pendente lite will not be disturbed.

No error.

Chief Judge Brock and Judge Carson concur.

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MORRIS, Judge.

Defendant’s sole assignment of error is to the trial court’s denial and continuance of the motion for alimony and counsel fees pendente lite after having found that the defendant was the dependent spouse and the plaintiff was the supporting spouse. We hold that the motion was properly denied.

G.S. 50-16.3 provides in pertinent part:

“ (a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or 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 pendente 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.”

It is clear from the face of this statute that in order for defendant to be awarded alimony pendente lite, it must appear that she is the dependent spouse, that she is entitled to the relief she demands and that she is without means to subsist during the pendency of this action. Rickert v. Rickert, 282 N.C. 373, 193 S.E. 2d 79 (1972). The two subdivisions of section (a) are conjunctive; thus, the grounds stated in both subdivisions must be found to exist before alimony pendente lite may be awarded. Presson v. Presson, 13 N.C. App. 81, 185 S.E. 2d 17 (1971).

■ It is not necessary that we consider the questions of the defendant’s dependency or whether she is entitled to relief. Her pleadings have stated in no uncertain terms that she has subsisted for a number of years without financial assistance of plaintiff. Defendant has failed to allege facts sufficient to show [589]*589pursuant to G.S. 50-16.3 (a) (2) that she has not sufficient means to subsist during the pendency of the action and to defray the necessary expenses thereof. The order denying support and counsel fees pendente lite will not be disturbed.

No error.

Chief Judge Brock and Judge Carson concur.

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202 S.E.2d 327, 20 N.C. App. 583, 1974 N.C. App. LEXIS 2498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogue-v-hogue-ncctapp-1974.

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