Phillips v. . Phillips

25 S.E.2d 848, 223 N.C. 276, 1943 N.C. LEXIS 256

• Court: Supreme Court of North Carolina
• Decided: June 2, 1943
• Status: Published

Opinion

Seawell, J.

"We do not understand that it is contended that subsistence and counsel fees pendente lite may not now be allowed under C. S., 1667, authorizing an action for alimony without divorce. The original Act of 1871-72 did not so provide; but successive amendments by ch. 24, Public Laws of 1919, and ch. 123, Public Laws of 1921, permitted an allowance of subsistence and of counsel fees pending the hearing on the

issues. See history of this legislation per Adams, J., in Moore v. Moore, 185 N. C., 332, 335, 117 S. E., 12; Peele v. Peele, 216 N. C., 298, 4 S. E. (2d), 616; Holloway v. Holloway, 214 N. C., 662, 200 S. E., 436. The defendant merely contends that, as a matter of law, such allowances should not be made upon the facts of this case and on plaintiff’s own showing.

Under C. S., 1667, although the plaintiff does not ask for divorce, she must charge and prove such injurious conduct on the part of the husband as would entitle her to a divorce a mensa et thoro, at least. She charged abandonment, failure to support, and adultery, which is sufficient to satisfy the statute.

Although he had made no plea of condonement in his answer, the defendant undertook to set up this defense against plaintiff’s motion for alimony and counsel fees pendente lite.

In Blakely v. Blakely, 186 N. C., 351, 119 S. E., 485, referring to the defense of'condonation, it is said: “It is very generally regarded as a specific affirmative defense to be alleged and proved by the party insisting upon it, and is not required to be negatived by the opposing pleader. White v. White, 171 Va., 244; Odom v. Odom, 36 Ga., 386; 9 R. C. L., 386. And decisions of our own Court, in Kinney v. Kinney, 149 N. C., 321; Steel v. Steel, 104 N. C., 631-638, and other cases, are in full approval of the general principle.”

We see no reason why this rule of practice should not be enforced since the defense affects the plaintiff’s case so importantly, and the rule is similar to that which obtains with respect to many other affirmative defenses which go to the defeat of the action. The defendant not having relied upon condonation in his answer should not be heard upon the point in resisting the motion for subsistence and suit money.

The defendant contends that the complaint and testimony of the wife fully establish that he had made adequate provision for her subsistence and that she has income out of this provision sufficient for suit money. But there are so many things to be taken into consideration upon such a question that it is difficult to conceive how it could ever become a matter of law, except upon an abuse of discretion by the trial judge, which does not appear in the case at bar. If there are such cases, they must be rare. In this connection it may be proper to note that the discretion given to t.he trial judge is so wide that he is not required to make formal findings of fact upon such a motion, unless the charge of adultery is made against the wife. Southard v. Southard, 208 N. C., 392, 180 S. E., 665; Price v. Price, 188 N. C., 640, 125 S. E., 264.

Of course, the introduction of evidence and the finding of facts were for the sole purposes of the motion, and the facts found are not conclusive on the trial of the issues. Moore v. Moore, supra.

We conclude that no error is disclosed in defendant’s appeal, and the order is

Affirmed.