Vickers v. . Vickers

Supreme Court of North Carolina

Vickers v. . Vickers

124 S.E. 737, 188 N.C. 448, 1924 N.C. LEXIS 95

CourtSupreme Court of North Carolina

DecidedOctober 22, 1924

StatusPublished

Cited by2 cases

This text of 124 S.E. 737 (Vickers v. . Vickers) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vickers v. . Vickers, 124 S.E. 737, 188 N.C. 448, 1924 N.C. LEXIS 95 (N.C. 1924).

Pincite

Opinion

Hoke, C. J.

The findings of fact in the original order by Judge Sinclair, supported by the affidavits and evidence offered in behalf of plaintiff, are fully sufficient to uphold the orders made by Granmer, *450 Judge, from which the present appeal is taken. True, Judge Cranmer himself does not in express terms make specific findings of fact, but the force and effect of his order is to affirm the findings of Judge Sinclair, his judgment only affecting such former order to the extent of reducing the amount of the allowance.

In Crews v. Crews, 175 N. C., p. 169, a case cited and to some extent relied on by appellant, the Court held that, under' the statute as it then was, and on issuable facts in bar of plaintiff’s right being formally presented in the answer, an allowance for alimony could not be made until the determination of the issues by a jury. At the next session of the Legislature, however, after this decision rendered, and no doubt in consequence of it, the statute was amended so as to permit an award of alimony pendente lite for both counsel fees and subsistence, to be realized and secured according to the course and practice of the court. This change in the law, and the effect and purpose of it, was pointed out and applied in Barbee v. Barbee, 187 N. C., p. 538, opinion by Associate Justice Stacy, and according to the decision of that case, and under the statute as it now prevails, the ruling of the lower court must be approved.

On perusal of the record it appears that the affidavit of the wife, charging adultery on the husband, is submitted as part of her evidence pertinent to the inquiry. As an independent fact, such evidence seems to be absolutely forbidden by the statutes and public policy controlling in the matter. C. S., 1662; Hooper v. Hooper, 165 N. C., p. 605. But, apart from this testimony, and on evidence sufficiently supporting them, are the express findings by the court of abandonment on the part of the husband, and of a willful failure to provide for their “necessary subsistence according to his means and condition in life,” thus bringing the judgment of the court clearly within the statutory provision on the subject.

There is no error, and the judgment of the lower court is

Affirmed.

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Hoke, C. J.

The findings of fact in the original order by Judge Sinclair, supported by the affidavits and evidence offered in behalf of plaintiff, are fully sufficient to uphold the orders made by Granmer, *450 Judge, from which the present appeal is taken. True, Judge Cranmer himself does not in express terms make specific findings of fact, but the force and effect of his order is to affirm the findings of Judge Sinclair, his judgment only affecting such former order to the extent of reducing the amount of the allowance.

In Crews v. Crews, 175 N. C., p. 169, a case cited and to some extent relied on by appellant, the Court held that, under' the statute as it then was, and on issuable facts in bar of plaintiff’s right being formally presented in the answer, an allowance for alimony could not be made until the determination of the issues by a jury. At the next session of the Legislature, however, after this decision rendered, and no doubt in consequence of it, the statute was amended so as to permit an award of alimony pendente lite for both counsel fees and subsistence, to be realized and secured according to the course and practice of the court. This change in the law, and the effect and purpose of it, was pointed out and applied in Barbee v. Barbee, 187 N. C., p. 538, opinion by Associate Justice Stacy, and according to the decision of that case, and under the statute as it now prevails, the ruling of the lower court must be approved.

On perusal of the record it appears that the affidavit of the wife, charging adultery on the husband, is submitted as part of her evidence pertinent to the inquiry. As an independent fact, such evidence seems to be absolutely forbidden by the statutes and public policy controlling in the matter. C. S., 1662; Hooper v. Hooper, 165 N. C., p. 605. But, apart from this testimony, and on evidence sufficiently supporting them, are the express findings by the court of abandonment on the part of the husband, and of a willful failure to provide for their “necessary subsistence according to his means and condition in life,” thus bringing the judgment of the court clearly within the statutory provision on the subject.

There is no error, and the judgment of the lower court is

Affirmed.

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Bluebook (online)

124 S.E. 737, 188 N.C. 448, 1924 N.C. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vickers-v-vickers-nc-1924.

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