Griffith v. Griffith

144 S.E.2d 589 (1965)

265 N.C. 521

Dorothy Lewis GRIFFITH v. David GRIFFITH.

No. 287.

Supreme Court of North Carolina.

November 3, 1965.

*590 Warren C. Stack, James L. Cole, Charlotte, for plaintiff appellant.

Herbert, James & Williams, by Henry James, Jr., Charlotte, for defendant appellee.

HIGGINS, Justice.

The parties agree that only two questions are presented by this appeal: (1) Did the court commit error in refusing to award the plaintiff alimony pendente lite and the possession of the home? (2) Did the court commit error in refusing to let the plaintiff take a nonsuit?

The record discloses that the court conducted the hearing during a session of the Superior Court. The evidence disclosed that the plaintiff had left the home with the two children and that the plaintiff had a substantial income as a music teacher. The defendant not only failed to file any answer or make any charge as to the plaintiff's misconduct, but, on the contrary, testified she was of good character, a good mother, and a fit custodian for the children. Under these circumstances the court was not required to make findings of fact as a basis for its denial of the alimony pendente lite. Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436. The rule applies whether alimony is allowed or is denied. Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. Subsistence and counsel fees pendente lite are within the discretion of the court. Decision is not reviewable except for abuse of discretion or for error of law. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220. The foregoing decisions sustain the refusal of the court to award alimony pendente lite and to order the home surrendered to the plaintiff.

Left for decision, however, is the question whether the court committed error in refusing to permit the plaintiff to take a voluntary nonsuit. Ordinarily, a plaintiff who appeals to a trial court for relief (other than by a proceeding in rem) may withdraw the claim and get out of court by taking a voluntary nonsuit. This he may do as a *591 matter of right unless the defendant has asserted some claim or cross action entitling him to affirmative relief. In such event the defendant is entitled to keep the action before the court until his claim is litigated. For citation of authorities, see Strong's North Carolina Index, Vol. 4, "Trial," § 29, p. 325. The rule applies to actions for divorce and alimony as in other cases. Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478.

In this case the defendant has not answered and has not asserted any claim or demanded any relief against the plaintiff.

Apparently defense counsel and the court were led astray on the question of nonsuit by what this Court said in Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349. In that case, as in this, the wife brought suit for alimony without divorce. While the case was before the court on a motion for a pendente allowance, the court denied the motion but, over plaintiff's objection, entered judgment dismissing her action. This Court held the trial court was without jurisdiction to dismiss the action because the plaintiff, notwithstanding the denial of the pendente lite claim, nevertheless had the right to pursue her claim for permanent alimony and have the facts heard and the issues answered by the jury. In Briggs, the Court held the plaintiff could not be thrown out of court over her objection at the pendente hearing. But the holding does not at all mean the plaintiff in such event may not take a voluntary nonsuit and get out of court of her own volition. The Briggs case holds nothing more than that she cannot be thrown out over her objection.

The defendant in this case does not assert any claim and does not demand any affirmative relief. This being so, the plaintiff had the right to take a voluntary nonsuit. The court committed error when it denied her that right. The judgment is

Reversed.