Whitney v. Whitney

189 S.E.2d 629, 15 N.C. App. 151, 1972 N.C. App. LEXIS 1846

• Court: Court of Appeals of North Carolina
• Decided: June 28, 1972
• Docket: No. 7226DC211
• Status: Published

Opinion

HEDRICK, Judge.

Under G.S. 50-16.3 (a) a dependent spouse who is a party to an action for divorce, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when:

“(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8 (f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made; and

(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.”

If it can be said that the trial judge sufficiently found that the plaintiff was a dependent spouse, and that she did not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof, and that these findings are supported by the evidence, the order as entered, nevertheless, must be vacated for it does not contain a sufficient finding that such dependent spouse is entitled to the relief demanded in the action in which the application for alimony pendente lite was made. Such a finding is essential. As was said by Chief Judge Mallard in Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971) :

“ * * * The two quoted sections of G.S. 50-16.3 (a) are connected by the word ‘and’; it is therefore mandatory that the grounds stated in both of these sections shall be found to exist before an award of alimony pendente lite may be made.”

For the reasons stated, the order appealed from is vacated and the case is remanded for a new hearing on plaintiff’s motion for alimony pendente lite and counsel fees.

Vacated and remanded.

Judges Brock and Vaughn concur.