Love v. Love

254 S.E.2d 642, 41 N.C. App. 308, 1979 N.C. App. LEXIS 2434

• Court: Court of Appeals of North Carolina
• Decided: May 15, 1979
• Docket: No. 7825DC741
• Status: Published

Opinion

MARTIN (Harry C.), Judge.

Plaintiff contends the court erred in finding he was the supporting spouse and in awarding defendant possession of the dwelling house. The evidence shows that plaintiff is sixty-five years old, cannot work because of heart problems and has not worked for years. He receives a Social Security check for $256 each month and lives in a trailer that belongs to his niece. Mrs. Love, the defendant, is fifty-five years of age, lives in the homeplace of the parties, works at Hildebran Elementary School cafeteria where she earns $315 a month for ten months a year. On an annual basis, this is an average of about $262.50 a month. The homeplace is jointly owned by plaintiff and defendant, who have been married thirty-five years. Defendant has no palee to live other than the homeplace.

The evidence supports the court’s finding that the defendant wife is the dependent spouse, as she is substantially dependent upon the plaintiff husband for maintenance and support. Plaintiff is capable of providing that required support by allowing defendant the possession and occupancy of the dwelling. N.C. Gen. Stat. 50-16.1 (3)-(4). Even though defendant has a separate income from her work at the cafeteria, the evidence still shows she is the dependent spouse. Radford v. Radford, 7 N.C. App. 569, 172 S.E. 2d 897 (1970). The facts found by the trial court are sufficient to sustain the conclusions of law and the order for alimony. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971). The court may award defendant possession of the home, owned by the parties as tenants by the entireties, as alimony. Sellars v. Sellars, 240 N.C. 475, 82 S.E. 2d 330 (1954); N.C. Gen. Stat. 50-16.7(a).

Affirmed.

Judges Parker and Mitchell concur.