Vaughan v. . Vaughan

190 S.E. 492, 211 N.C. 354, 1937 N.C. LEXIS 90

• Court: Supreme Court of North Carolina
• Decided: March 17, 1937
• Status: Published

Opinion

ClaeksoN, J.

This is an action brought by the plaintiff against the defendant to secure a divorce a mensa et thoro, N. 0. Code, 1935 (Michie), section 1660, par. 1. The defendant in her answer set up a cross action asking that she be granted a divorce a mensa et thoro and alimony pendente lite, all of which is shown by the pleadings filed in the action.

N. C. Code, supra, is as follows: “Grounds for divorce from bed and board. The Superior Court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases: (1) If either party abandons his or her family,” etc. The grounds for divorce a mensa given by this section are available to the husband as well as the wife, or as stated by the express language of the statute to the “injured party.” Brewer v. Brewer, 198 N. C., 669. Only the party injured is entitled to a divorce from bed and board under this section. Carnes v. Carnes, 204 N. C., 636 (637); Albritton v. Albritton, 210 N. C., 111 (116).

N. C. Code, supra, section 1666, is as follows: “If any married woman applies to a court for divorce from the bonds of matrimony, or from bed and board, with her husband, and sets forth in her complaint such facts, which upon application for alimony shall be found by the judge to be true and to entitle her to the relief demanded in the complaint, and it appears to the judge of such court, either in or out of term, by the affidavit of the complainant, or other proof, that she has not sufficient means whereon to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order the husband to pay her such alimony during the pendency of the suit as appears to him just and proper, having regard to the circumstances of the parties; and such order may be modified or vacated at any time, on the application of either party or of anyone interested: Provided, that no order allowing alimony pendente lite shall be made unless the husband shall have had five days notice thereof, and in all cases of application for alimony pendente lite under this or the succeeding section, whether in or out of term, it shall be admissible for the husband to be heard by affidavit in reply or answer to the allegations of the complaint: Provided further, that if the husband has abandoned his wife and left the State or is in parts unknown, or is about to remove or dispose of his property for the purpose of defeating the claim of his wife, no notice is necessary.”

Upon motion for alimony it is sufficient for the court to find that the facts are as alleged in the answer and the affidavits filed in support of the motion. Barker v. Barker, 136 N. C., 316.

Where the wife’s action is for a divorce a mensa on the ground of abandonment, stating that she was compelled to leave home by the conduct of her husband, the judge, in allowing alimony pendente lite, must find such facts that would justify her in law for so doing, at the time she left her husband, and those that occurred thereafter are insufficient. Horton v. Horton, 186 N. C., 332. In an application for alimony pendente lite under this section, it is required that the court find the facts in determining whether the wife is entitled to alimony, her right thereto being a question of law, and it is error for the court to refuse applicant’s request for a finding of facts upon which the court denies the application. Caudle v. Caudle, 206 N. C., 484. The plaintiff in the Caudle case, supra, in apt time moved the court to find the facts, which were overruled. In the present case we think the facts were sufficiently found and plaintiff’s only exception is “to the entire finding of facts as set out in the order of the judge.”

While the right of alimony involves a question of law, the amount of alimony and counsel fees is a matter of judicial discretion. Davidson v. Davidson, 189 N. C., 625.

As this is a family controversy, we think it unnecessary to set forth the facts in detail, but we are of the opinion that they are sufficiently set forth in the order of 10 October, 1936, to sustain the judgment rendered.

As to the second exception and assignment of error: “The defendant served notice through her attorney on the plaintiff on 21 September, 1936, that the defendant would appear before the Honorable M. Y. Barn-hill, Resident Judge of the Second Judicial District of North Carolina, at his office in the city of Rocky Mount, Nash County, North Carolina, on 26 September, 1936, at the hour of 11 o’clock a.m., and make motion that the plaintiff be required and compelled to pay to the defendant alimony pendente lite and also for necessary and proper expenses of the prosecution of defendant’s cross action, including a reasonable allowance for counsel fees.” The hearing was had on this motion and an order rendered, as appears in the record. When this order was rendered, plaintiff had appealed to the Supreme Court, but the stay bond had not been given.

N. C. Code, supra, section 650, is as follows: “Undertaking to stay execution on money judgment. If the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it is satisfactorily made to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file, and serve a new undertaking, as above. In case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring it, the appeal may, on motion to the court, be dismissed with costs. Whenever it is necessary for a party to an action or proceeding to give a bond or undertaking with surety or sureties, he may, in lieu thereof, deposit with the officer into court money to the amount of the bond or undertaking to be given. The court in which the action or proceeding is pending may direct what disposition shall be made of such money pending the action or proceeding. In a case where, by this section, the money is to be deposited with an officer, a judge of the court, upon the application of either party, may, at any time before the deposit is made, order the money deposited in court instead of with the officer; and a deposit made pursuant to such order is of the same effect as if made with the officer. The perfecting of an appeal by giving the undertaking mentioned in this section stays proceedings in the court below upon the judgment appealed from; except when the sale of perishable property is directed, the court below may order the property to be sold and the proceeds thereof to be deposited or invested to abide the judgment of the appellate court.”

In Bledsoe v. Nixon, 69 N. C., 82 (84-5), it is said: “The fact that final judgment was entered in this Court makes a material difference. By the appeal the cause was brought up to this Court, and as a matter of course a ‘motion in the cause’ can only be entertained by the Court where the cause is. This was admitted by the counsel of plaintiff, but they took the position that inasmuch as O. C. P., title XIII, requires two undertakings, one to cover costs, the other to perform the final judgment, and the latter undertaking had not been perfected. This failure on the part of the client left ‘the cause’ in the Superior Court. This is not the meaning of C. C. P. in regard to appeals. If the undertaking to perform the final judgment is not perfected, or a money deposit made, the purpose was to raise this money deposit by means of an execution, after 'tbe cause’ bas been carried up to tbe Supreme Court by tbe appeal; but 'tbe cause’ is by tbe appeal taken out of tbe Superior Court and carried up to tbe Supreme Court, no matter in wbicb of tbe three ways provision be made for tbe performance of tbe final judgment.”

In S. v. Edwards, 205 N. C., 661 (662), we find: “In tbe first place, tbe case was supposed to be pending in tbe Supreme Court on appeal. If so, during its pendency bere, tbe Superior Court was without power to entertain tbe motion. S. v. Casey, 201 N. C., 185; Bledsoe v. Nixon, 69 N. C., 82; S. v. Lea, 203 N. C., 316.”

The appeal was from a judgment which, among other things, directed the payment of money by plaintiff to defendant. By this judgment plaintiff became indebted to defendant, and she could issue the ordinary execution against the property of plaintiff to collect the judgment, as no stay bond was given as required by the court below. Hagedorn v. Hagedorn, ante, 175 (179).

We think after tbe first appeal was taken, although no stay bond was given, tbe court below was fimtus oficio to render tbe second order.

For tbe reasons given, tbe judgment is

Affirmed as to first appeal.

As to second appeal there is error.