Ingle v. Ingle

256 S.E.2d 532 (1979)

42 N.C. App. 365

William E. INGLE v. Sarah Pascoe INGLE.

No. 7826DC785.

Court of Appeals of North Carolina.

July 17, 1979.

*534 Cole & Chesson by James L. Cole, Charlotte, for plaintiff-appellant.

Bryant, Hicks & Sentelle by David B. Sentelle and Richard A. Elkins, Charlotte, for defendant-appellee.

HARRY C. MARTIN, Judge.

An award of alimony pendente lite requires proof that the claiming party is a dependent spouse and that the other party is the supporting spouse, as well as the proof of grounds entitling claimant to alimony pendente lite. Before the hearing on alimony pendente lite, plaintiff and defendant entered into stipulations, inter alia, that defendant is a dependent spouse entitled to alimony pendente lite and that plaintiff is a supporting spouse for the purposes of an alimony pendente lite award. The parties further stipulated that grounds existed for the entry of an order awarding defendant alimony pendente lite. Stipulations are deemed to be established facts, are binding upon the parties, and relieve the party with the burden of proof of the necessity of producing evidence to establish the matters stipulated. Blair v. Fairchild, 25 N.C.App. 416, 213 S.E.2d 428, cert. denied, 287 N.C. 464, 215 S.E.2d 622 (1975). By the stipulations of the parties, the facts necessary to recover alimony pendente lite were established and the only question before the trial court was the amount.

The amount of alimony pendente lite is to be determined in the same manner as alimony. N.C.Gen.Stat. 50-16.3(b); Little v. Little, 9 N.C.App. 361, 176 S.E.2d 521 (1970). "Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case." N.C.Gen.Stat. 50-16.5. The ultimate amount is to be determined in the discretion of the trial court. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5 (1968). Although this amount is not absolute and unreviewable, it will not be disturbed absent a clear abuse of discretion. Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975). Findings of fact are not required to support the trial court's determination of the amount of alimony pendente lite. Id. However, in determining the amount of alimony, the trial court must consider the income, assets and respective needs of the parties. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). See N.C. Trial Judges' Bench Book, Alimony, IV.2D.5 (1979). We hold the trial court complied with Beall and the applicable statutes. Plaintiff has failed to show any abuse of discretion by the court in determining the amount of alimony pendente lite.

Plaintiff contends the financial statement of expenses submitted by defendant was not reliable because it was not supported by credible and competent testimony. In effect, plaintiff contends defendant's testimony impeached the entries on her financial statement. The impeachment of a witness's testimony and evidence goes to the credibility of the witness. It is the function of the trial judge, in trials without a jury, to weigh and determine the credibility of a witness. The presence of inconsistencies in defendant's testimony and her financial affidavit go only to the credibility of those certain items and do not impeach the entire affidavit as plaintiff contends. It is clear that the court did not include every item listed and requested in defendant's financial affidavit in its award of alimony. Defendant declared fixed needs and expenses of $1,254.05 per month. The court awarded her $750 per month. The court did not designate the evidence upon which the award was based, nor was it required to do so. Eudy v. Eudy, supra. The trial *535 judge found defendant's testimony and evidence credible despite inconsistencies, therefore we will not hold to the contrary.

Plaintiff contends the trial court erred in denying his motion to strike defendant's testimony that she needed to save or plan for a replacement of her automobile. This expense was listed in defendant's affidavit of financial standing (although not clearly labeled as such). Plaintiff and defendant stipulated that the affidavits of financial standing of both parties were in evidence. Plaintiff did not enter a general objection nor a specific objection to any of the items listed in defendant's affidavit of financial standing. If evidence theretofore has been admitted without objection, a subsequent objection to admission of evidence of the same import is waived. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976). Further assuming arguendo the evidence was erroneously admitted, the error was not prejudicial. It is not ordinarily prejudicial if evidence is erroneously admitted in a trial before a court without a jury since it is presumed that the court did not consider the incompetent evidence. Reverie Lingerie, Inc. v. McCain, 258 N.C. 353, 128 S.E.2d 835 (1963).

Plaintiff assigns as error the trial court's denial of his motion to dismiss. He maintains that the evidence was insufficient to permit defendant a recovery. As discussed above, the question of whether defendant was entitled to an award of alimony pendente lite was resolved by the stipulations of the parties and the only question before the court was the amount of the award. We hold there was sufficient evidence before the trial court for deciding the question before it. Again plaintiff's attack goes to the credibility of defendant's testimony. As discussed above, the weight and credibility to be given defendant's testimony was for the judge, sitting without a jury. The trial judge had the opportunity to hear the evidence, observe the demeanor of the witnesses and assess their credibility. We find no error in the trial court's denial of plaintiff's motion to dismiss.

We have carefully reviewed plaintiff's remaining assignments of error and find in them no error.

Affirmed.

MORRIS, C. J., and PARKER, J., concur.