Garner v. Garner

154 S.E.2d 46 (1967)

270 N.C. 293

Grace Ferguson GARNER v. Johnie D. GARNER.

No. 609.

Supreme Court of North Carolina.

May 3, 1967.

*47 Ottway Burton, Asheboro, for plaintiff appellant.

Walker, Anderson, Bell & Ogburn, by, Deane F. Bell, Asheboro, for defendant appellee.

PER CURIAM.

The law applicable to this case is well stated in Butler v. Butler, 226 N.C. 594, *48 39 S.E.2d 745, where Seawell, J., speaking for the Court, said:

"The allowance of support and counsel fees pendente lite in a suit by the wife against the husband for divorce or alimony without divorce is, in certain aspects, within the discretion of the court. It is not, however, an absolute discretion to be exercised at the pleasure of the court and unreviewable. It is to be exercised within certain limits and with respect to factual conditions which are controlling. Generally speaking (and excluding statutory grounds for denial), allowance of support to an indigent wife while prosecuting a meritorious suit against her husband under G.S. 50-16, for alimony without divorceand in similar actions here and elsewhereis so strongly entrenched in practice as to be considered an established legal right. In such case discretion is confined to consideration of the necessities of the wife on the one hand, and the means of the husband on the other. But to warrant such allowance the court is permitted and expected to look into the merits of the action, and would not be justified in allowing subsistence and counsel fees where the plaintiff, in law, has no case. "The Court is of opinion that the jurisdiction of the court invoked under G.S. 50-16 is not barred by the separation agreement pleaded, and that within the frame of her present action, the plaintiff may seek such relief as she may be entitled to have." (Citations omitted)

Judge Latham's order of 9 August 1966 had no provision for the support of the expected child which was born one month later, September 9, 1966. The order provided for the support of the mother "until the birth of the child." Consequently, the order had expired when the cause was heard before Judge Johnston on 25 October 1966.

Upon the admission of the defendant before Judge Johnston that he was making $200.00 a week and the allegation by the wife that she had no income whatever except from the charity of her people, the court was required to exercise its discretion. Although the order of Judge Johnston includes the phrase "in the discretion of the court," it would appear from this record that it was not "exercised with respect to factual conditions which are controlling," and that the plaintiff is entitled to an award for herself and her baby unless upon a further hearing facts are shown which do not appear in the present record.

The cause is remanded for a hearing upon the application of the plaintiff for support of herself and her child and for the exercise of the sound discretion of the court.

Error and remanded.