Briggs v. Briggs

67 S.E.2d 349 (1951)

234 N.C. 450

BRIGGS v. BRIGGS.

No. 386.

Supreme Court of North Carolina.

November 7, 1951.

Jones, Reed & Griffin, Kinston, for plaintiff appellant.

Whitaker & Jeffress, Kinston, for defendant appellee.

BARNHILL, Justice.

The court below, after hearing the evidence, made full findings of fact. The facts found are supported by the evidence offered and are binding on us. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases cited.

On the facts found the court correctly concluded that the plaintiff has failed to make out any cause for divorce, either a vinculo or a mensa.

The existence of grounds for divorce is a prerequisite to any allowance to the wife under G.S. § 50-16. To warrant an allowance pendente lite she must allege and prove a cause of action for divorce. Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384. In the absence of such proof, the court below properly denied her motion. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, and cases cited; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919.

But the cause was heard on motion for subsistence and counsel fees pendente lite. It was not before the court on final hearing on the merits. Hence the court was without jurisdiction to dismiss the action as in case of nonsuit. To this extent the order entered must be modified. As so modified the judgment is affirmed.

Modified and affirmed.