Speck v. Speck

168 S.E.2d 672, 5 N.C. App. 296, 1969 N.C. App. LEXIS 1338

• Court: Court of Appeals of North Carolina
• Decided: July 23, 1969
• Docket: 6910DC338
• Status: Published

Opinion

Campbell, J.

The plaintiff’s first contention is that the trial judge erred in entering an order as to the custody and support of David. It is argued that the trial judge lacked jurisdiction to enter such an order because David was a resident of Virginia; he was not a minor; he had not been adjudged incompetent; and the defendant had not been appointed his custodian or guardian.

Since this civil action was commenced on 10 January 1967, G.S. 50-13 applies, even though it was repealed and replaced by G.S. 50-13.1 through 50-13.8, which became effective from and after 1 October 1967. Unlike Chapter 1152 of the 1967 Session Laws, there is no provision in Chapter 1153 pertaining to pending litigation. However, there is nothing to indicate a legislative intent to apply the new statutes to pending litigation.

“The General Assembly has the power to enact retroactive laws provided that they do not impair the obligation of contracts or disturb vested rights. There is no vested right in procedure, and therefore statutes affecting procedural matters solely may be given retroactive effect when the statutes express the legislative intent to make them retroactive. . . .

Ordinarily, a statute will be given prospective effect only, and will not be construed to have retroactive effect unless such intent is clearly expressed or arises by necessary implication from its terms.” 7 Strong, N.C. Index 2d, Statutes, § 8, p. 80.

“Statutes ought not to act retrospectively and will not be so construed unless their terms require it. ... A plain expression of legislative intent, that it shall have retroactive effect, is necessary. . . .

. . . ‘There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. . . ” Comrs. v. Blue, 190 N.C. 638, 130 S.E. 743.

“. . . The rights of the parties [under the cross-action] are governed by G.S. 50-16, since this litigation began prior to the repeal of that statute by the Session Laws of 1967, chapter 1152. The 1967 Act provides expressly that it shall not apply to pending litigation.” Schloss v. Schloss, 273 N.C. 266, 160 S.E. 2d 5.

Prior to the 1967 legislative changes, the Supreme Court had held that it was not necessary for a minor child to be in the jurisdiction in order to award custody and payment of “an allowance to the mother for the child’s support”. Romano v. Romano, 266 N.C. 551, 146 S.E. 2d 821. This could be done if both the husband and wife were before the trial “court and subject to its in personam judgments”. Romano v. Romano, supra.

“The rationale of the rule seems to be that when both parties to a marriage are before the court in a divorce proceeding, the court may adjudicate their respective rights, duties, and obligations involved in the custody of their children, even though the children are not actually before the court. The court enforces its decrees by dealing with the offending parent since, because of its absence, the court cannot deal ‘with the person of the infant.’ ” Romano v. Romano, supra.

The fact that a child has attained majority does not necessitate a contrary holding where the child is mentally and physically disabled.

“Ordinarily the law presumes that when a child reaches twenty-one years of age he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates. But in North Carolina and a number of other states it has been held that a father is under a legal obligation to continue to provide necessary support to a child who prior to and after reaching the age of twenty-one years is and continues to be insolvent, unmarried, and incapable, mentally or physically, of earning a livelihood. The Supreme Court of North Carolina, in so holding in Wells v. Wells, [227 N.C. 614, 44 S.E. 2d 31], created an exception to the general rule and reached a result commensurate with sound public policy and progressive social principles.” 3 Lee, North Carolina Family Law, § 229, p. 54, at p. 60.

“[O]rdinarily the law presumes that when a child reaches the age of twenty-one years he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates. But where this presumption is rebutted by the fact of mental or physical incapacity, it no longer obtains, and the obligation of the father continues.” Wells v. Wells, supra.

This rule was codified in 1967 by the General Assembly in G.S. 50-13.8. 3 Lee, North Carolina Family Law, § 229, p. 30 of 1968 Cumulative Supplement.

Neither the record nor the decision of the Supreme Court in Wells v. Wells, supra, disclose that the child there involved had been adjudicated an incompetent or that a custodian or guardian had been appointed. The holding was not preconditioned upon such an adjudication. In the instant case, Judge Copeland entered an order under date of 13 March 1968 for a psychiatric examination of David. Judge Hobgood entered an order under date of 1 May 1968 appointing as psychiatrists to conduct said examination the staff of the Psychiatric Department of the North Carolina Memorial Hospital in Chapel Hill. Judge Ransdell entered an order under date of 17 February 1969 in which he made the following finding of fact:

. . David . . . has continuously been and remains unmarried, insolvent, and so handicapped both mentally and physically as to be incapable of earning his livelihood; that he is in such condition mentally and physically as to require constant supervision, care, attendance and attention and is totally dependent upon the defendant.”

He thereupon concluded as a matter of law that:

. . David ... is not competent, by reason of mental and physical disability to be self-supporting or to earn his'own livelihood and that said David ... is an incompetent and unemancipated child . . .; that it is in the best interest of the said David . . . that he be placed in the custody and care of his mother, the defendant. . . .”

At the time Judge Ransdell made the finding of fact and conclusion of law, he had before him the report from the Psychiatric Department and five medical affidavits which had been filed with the district court and duly introduced into evidence at the hearing.

This contention is without merit.

The plaintiff’s second contention is that the trial judge erred in overruling his demurrer to the defendant’s cross-action. It was argued that the defendant failed to state facts sufficient to state a cause of action for abandonment.

“. . . To state a cause of action under G.S. 50-16 it is necessary to allege (1) the marriage, (2) the separation of the husband from the wife and his failure to provide the wife and children of the marriage reasonable subsistence, i.e., abandonment, or some conduct on the part of the husband constituting cause for divorce, either absolute or from bed and board, and (3) want of provocation on the part of the wife. . . .” Murphy v. Murphy, 261 N.C. 95, 134 S.E. 2d 148. See 1 Lee, North Carolina Family Law, § 80, p. 302.

“Denny, J., said for the Court in Blanchard v. Blanchard, 226 N.C. 152, 36 S.E. 2d 919: Tt is unnecessary for a husband to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him. This, under our decisions, would constitute abandonment by the husband.’ ” Bailey v. Bailey, 243 N.C. 412, 90 S.E. 2d 696.

The cross-action stated a cause of action under G.S. 50-16. This contention is without merit.

The plaintiff’s third, fourth and fifth contentions are that there was not sufficient evidence to support Findings of Fact Numbers Three and Four. The trial judge complied with the following general rule stated in Ipock v. Ipock, 233 N.C. 387, 64 S.E. 2d 283, (although the facts are distinguishable):

“Consequently, in passing on such motion the judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. . . .”

We have reviewed the record and find no merit in these contentions.

We have likewise reviewed the record in respect to the sixth contention and find no merit. The question of jurisdiction has been dealt with supra and further discussion is unnecessary.

The plaintiff’s seventh contention is that the trial judge erred in awarding counsel fees pendente lite to the defendant, because there was no testimony taken to determine whether he was a wrong doer and because there was no finding of fact in the order under date of 17 February 1969 that he was a wrongdoer. It was unnecessary for the trial judge to make findings of fact in this hearing on the cross-action under G.S. 50-16. It is presumed “that the court, for the purposes of the hearing, found that [the plaintiff] had wrongfully abandoned the [defendant], as alleged in the” cross-action. Southard v. Southard, 208 N.C. 392, 180 S.E. 665. Judge Ransdell made findings of fact, some of which were set out in his order. A finding of fact that the plaintiff was a wrongdoer was not set out. This, however, did not preclude the presumption that the plaintiff was found to have wrongfully abandoned the defendant.

The plaintiff’s eighth contention is that the trial judge erred in its conclusion of law because it was not supported by the evidence and because the trial judge lacked express authority to determine the questions of incompetency and visitation rights. Suffice it to say that, since the husband and wife were before the court, visitation rights could be established, regardless of the child’s residence. This contention is without merit.

The plaintiff’s ninth contention is that, since the trial judge had “no authority over the conduct, rights or privileges of David . . ., a citizen and resident of the State of Virginia”, it was error to enter the following order:

“[T]hat the plaintiff (defendant?) be and she is hereby given custody and control of David . . . and that the plaintiff may have the said David . . . visit with him at reasonable times; and that the plaintiff also shall have the right to visit said David ... at his home at reasonable times and under reasonable circumstances.”

Based upon the reasoning of Romano v. Romano, supra, we hold that this contention is without merit.

The plaintiff’s tenth contention is that the trial judge erred in entering the following order:

“[T]hat the plaintiff pay to the defendant pendente lite, the sum of Two Hundred and no/100 Dollars ($200.00) per month commencing the 15th day of February, 1969, and on or before the 15th day of each month thereafter for the use and benefit of said David . . . incompetent and unemancipated son of the parties.”

It is argued that “ [t] his order is impossible of being carried out since it was rendered on the 17th day of February while $200.00 is required to be paid out on the 15th day of that month”. Under the express terms of the order, the plaintiff was required to pay to the defendant $200.00 for the month of February. Although the requirement relates back to the 15th of February, the plaintiff could have complied with the order by making the payment at anytime during the month of February. Unlike the provision for subsequent months, the payment for February did not have to be made “on or before the 15th day”.

It is further argued that the justified expenses for the use and benefit of David is $80.00. “[T]he amount the [plaintiff] is required to pay for the support of his child and for reasonable subsistence of the [defendant] pendente lite and for compensation to her counsel, is determinable by the [trial] judge in the exercise of his sound discretion. And in the absence of an abuse of discretion, his decision is not reviewable.” Rock v. Rock, 260 N.C. 223, 132 S.E. 2d 342. No abuse of discretion has been made to appear.

The plaintiff’s eleventh contention is that the trial judge erred in entering the order under date of 17 February 1969 “for that it is contra to the law, is not supported by substantial and competent evidence and fails to find sufficient and adequate findings of fact and conclusion to answer the issues raised by the pleadings.” It is argued that the findings of fact “were attempted but failed to establish the needs of the son and failed to determine the ability of the father. The expenses of the father are not considered, much less established.” In respect to the plaintiff’s ability to pay, the testimony revealed that his income was $888.65 per month from his civil service annuity and that he owned a twenty-acre tract and a four-acre tract of land. In respect to the needs of David, the testimony of the defendant revealed that the part-time vocational rehabilitation cost $10.00 per week, the psychiatric treatment cost $60.00 for two sessions a month, the dental treatment cost on the average of $5.00 per month, the transportation to and from the vocational rehabilitation school and the psychiatric treatment cost on the average of $15,00 per month, and his clothing cost on the average of $25.00 per month. Mrs. Sooley was also paid $120.00 per month for staying with David. This testimony and the cross-action, which was treated as an affidavit in support of the prayer and motion for relief pendente lite, support the order.

The plaintiff’s twelfth contention is that the trial judge erred in making the following finding of fact:

“That although defendant is gainfully employed, her normal expenses are approximately equal to her income, and she is therefore financially unable to pay a reasonable fee to her attorneys.”

It is argued that the finding of fact is contrary to the evidence. The defendant testified that the total of her household expenses, personal and those in connection with a trust for the benefit of David, was $1,317.51 per month. She further testified that her income was $1,333.34 per month.

The defendant’s testimony indicates that her gross income for 1969 will be $16,000.00, or $1,333.34 per month. Her federal and state taxes and social security are $313.66 per month. Her expenses per month in connection with David include $40.00 for part-time vocational rehabilitation, $60.00 for psychiatric treatment, $5.00 for dental treatment, $15.00 for transportation costs, $25.00 for clothing, and $120.00 for an attendant. These total $265.00 per month. In addition, her expenses per month include $150.00 for food, $15.00 for telephone, $50.00 for personal expenses such as lunches, cleaning and clothing, $37.50 for dental work, $7.00 for Medicare, $10.00 for car insurance, $30.00 for transportation and car maintenance, $10.00 for hospitalization insurance policy, $13.00 for accidental death policy, and _ $17.00 for other insurance. These total $339.50. Her expenses per month in connection with a trust created for the benefit of David include premiums of $35.50, $18.99, $269.71, $16.67, and $4.00. These total $344.87. Therefore, her expenses for each month, according to these figures, equal at least $1,263.03. The difference between her monthly income of $1,333.34 and her monthly expenses of $1,263.03 is $70.31.

In his order, the trial judge found that “her normal expenses are approximately equal to her income.” He did not find that they were exactly equal. This contention is without merit.

The thirteenth contention is likewise without merit and further discussion of the point raised is unnecessary.

The plaintiff’s fourteenth contention is that the trial judge erred in entering the following order:

. . that the plaintiff pay to Joyner, Moore and Howison, counsel for the defendant, the sum of One Thousand Five Hundred Dollars ($1,500.00) to apply upon attorneys’ fees incurred by defendant to the date of this order, such sum to be paid on or before the 15th day of February, 1969, or at such other time and under such other terms and conditions as may be satisfactory to said counsel for defendant.”

Since the order was dated 17 February 1969, the plaintiff could not have complied with the provision for payment “on or before the 15th day of February”. However, he could have fully complied with the alternative provision for payment. In so doing, it is not to be presumed that counsel for defendant would have exercised the power to determine the time and the terms and conditions of payment to the detriment and prejudice of the plaintiff.

It is argued that “[t]he evidence presented does not justify ordering counsel fees for the defendant in that . . . her income and financial reserves are amply sufficient to pay her own fees”. In view of her monthly expenses, the defendant was not able to pay a reasonable fee to her attorneys.

It is further argued that “[t]he evidence presented does not justify ordering counsel fees for the defendant in that . . . the plaintiff has not been held to have abandoned her”. However, there is a presumption that the trial judge found that the plaintiff abandoned the defendant. Southard v. Southard, supra.

In respect to the amount of counsel fees pendente lite, the plaintiff argued that $1,500.00 was excessively liberal. In support of his position he cited Schloss v. Schloss, supra. The Supreme Court there stated:

“[L]ess than two months elapsed between the separation and the entry of the order. The order directed the husband to pay $2,500 to the wife’s counsel ‘as a fee for services rendered to date.’ (Emphasis added.) There is nothing to indicate that the wife consulted her counsel prior to the husband’s departure from the home. No evidence was introduced at the hearing by the plaintiff except her verified complaint, a short affidavit by her with reference to the effect of the full allowance prayed for upon the husband’s income tax liability, and a copy of the joint income tax i’eturn. The entire evidence for the defendant consisted of his counter affidavit and three very short affidavits of other persons. Nothing in the record indicates that extensive preparation for the hearing was necessary or was made.”

In the instant case, the record indicates that extensive preparation for the hearing was necessary and was made. Much of the preparation was necessitated by the mental and physical condition of David. In his order, Judge Ransdell made the following finding of fact:

“That the matter has been placed on the trial calendar numerous times, finally being tried at the January 1969 Term of Wake County District Court, resulting in a mistrial, and that counsel for defendant has represented her throughout these proceedings.”

The Supreme Court further stated in Schloss v. Schloss, supra:

“The [wife] alleges in her complaint that she is the" owner of a $48,000 residence which is free of encumbrances, she owns a new automobile and has over $13,000 in bank accounts and other investments. When to these resources there is added by the court’s order an income from her husband at the rate of $18,000 per year, it cannot be said, in the absence of any findings of fact, that she is financially unable to pay a reasonable fee to her attorney and so is unable to employ counsel to represent her in her litigation with her husband.”

In the instant case, the monthly expenses would prevent the defendant from meeting the plaintiff, as litigant, on substantially even terms without an allowance of counsel fees pendente lite. Judge Ransdell found as a fact that the defendant’s normal expenses were approximately equal to her income.

The fifteenth contention is likewise without merit and further discussion of the points raised is unnecessary.

Affirmed.

BeocK and Moeeis, JJ., concur.