Allen v. Allen

• Decision Date: 01 December 1920
• Docket Number: 360.
• Citation: 105 S.E. 11,180 N.C. 465
• Parties: ALLEN v. ALLEN.
• Court: North Carolina Supreme Court

105 S.E. 11

180 N.C. 465

ALLEN v. ALLEN.

No. 360.

Supreme Court of North Carolina

December 1, 1920

Appeal from Superior Court, Rockingham County; Ray, Judge.

Action by Pearl Allen against J. N. Allen for subsistence for plaintiff and her children. From order allowing subsistence and counsel fees pending final hearing, defendant appeals. Modified and affirmed.

This is a proceeding commenced under chapter 24 of the Public Laws of 1919, amendatory of section 1567 of the Revisal, for the purpose of securing to the plaintiff subsistence for herself and children, together with counsel fees. From an order allowing subsistence and counsel fees, made by his honor Judge Ray, the defendant appeals.

Clark C.J., dissenting as to headnote 2, and Allen and Walker, JJ dissenting as to headnote 1 and the result.

J. C Brown, of Madison, and C. O. McMichael, of Winston-Salem, for appellant.

J. M. Sharp and P. W. Glidewell, both of Reidsville, for appellee.

BROWN, J.

The judge made an allowance to the plaintiff for subsistence of $200 on April 1, 1920, upon due notice. No exception was taken to this allowance, and it was paid in full by the defendant. The case was then continued for further hearing until May 11, 1920, to be heard at the courthouse in Wentworth. At that time an allowance was made to the plaintiff of $75 for herself and children, together with $250 attorney's fees in addition. In his first order the judge finds as a fact:

"That the defendant has left the plaintiff, and has taken from her without legal process the four older children, and has failed and refused to support the said plaintiff, and has refused to let her see the said four children, and has taken under claim and delivery all the household and kitchen furniture and provisions, and has locked them up; and it further appearing to the court that the baby, two years old, is still with the plaintiff, and that the defendant is trying to, without legal process, take that child from the plaintiff."

Upon this finding we are of opinion that the plaintiff is entitled to an allowance for necessary subsistence pending the action and until the issues can be determined by a jury. In our judgment it is immaterial what counter charges the defendant makes against the plaintiff. If he has separated from her, he must support her according to his means and condition in life, taking into consideration the separate estate of the wife, until the issues can be determined by a jury. The sum allowed for subsistence must be left to the sound discretion of the superior court judge, and there is no evidence of an abuse of such discretion in this case.

The act of 1919 is plainly intended to supersede the statute heretofore regulating alimony pendente lite, and consequently all the decisions bearing thereon are of no value. The Legislature has carefully avoided the use of the word "alimony" anywhere in the statute. Counsel fees have heretofore been allowed as comprehended under the term "alimony," because they were necessary in order to enable the wife to prosecute her action. But in this statute, the word "subsistence" is used, and the word "alimony" omitted, and there is no provision whatever, that we can find, authorizing the allowance of counsel fees in a proceeding brought under the statute.

We are of opinion that the order allowing subsistence should be affirmed, and that the order allowing counsel fees should be reversed.

Modified and affirmed.

CLARK, C.J. (concurring in part).

There are but two assignments of error. The first is that the court allowed alimony pendente lite in a proceeding under Rev. § 1567, authorizing "actions for alimony without divorce." There had been decisions of this court that alimony pendente lite was not authorized in actions brought under that section, but was allowable only in actions brought under Rev. § 1566, in actions for divorce. But to cure this defect chapter 24, Laws 1919, expressly provides that in actions like this under Rev. § 1567, for "alimony without divorce," alimony pendente lite could be allowed in the discretion of the court. This chapter must have escaped the attention of the appellant's counsel.

The only other assignment of error is that the judge "signed the order" for which no grounds are given, neither in the exception itself nor in the assignment of error and therefore it is invalid. There is an exception urged, however, that the judge did not find the facts upon which he based his order. The fact of abandonment is, however, expressly found, and that of marriage is admitted, which are the facts required to be found as the basis for an allowance pendente lite under Rev. § 1566. Skittletharpe v. Skittletharpe, 130 N.C. 72, 40 S.E. 851; Bidwell v. Bidwell, 139 N.C. 402, 52 S.E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. Rep. 797. Besides, under the language in Rev. § 1567, the judge is not required to "find the facts," as he is required to do under proceedings in section 1566 by the language thereof.

The recriminatory allegations in the answer are not to be considered in a motion of alimony pendente lite, when there has been a marriage and abandonment, as is well stated by Hoke, J., in Medlin v. Medlin, 175 N.C. 530, 95 S.E. 857, Skittletharpe v. Skittletharpe, and Bidwell v. Bidwell supra. Up to chapter 53, Laws 1852, alimony pendente lite was not allowed in actions for divorce. Earp v. Earp, 54 N.C. 119. But the humanity of that day revolted at this injustice, and authorized such an allowance, in the discretion of the court. Laws 1871-72, c. 193, authorized the wife to sue for alimony, without asking for divorce. Cram v. Cram, 116 N.C. 288, 21 S.E. 197. It was subsequently ascertained that this latter act inadvertently failed to authorize the allowance of alimony pendente lite in that proceeding, and this defect was cured by the enactment of chapter 24, Laws 1919. The above is the history of "Alimony pendente lite" in this state. But it must be noted that "counsel fees and suit money" were allowed as costs before, and are not derived from the allowance of alimony, which word comes from the Latin alimentum, and means simply an allowance for subsistence and is statutory.

Counsel fees and suit money have been allowed from time immemorial, and do not come under any provision for alimony (19 C.J. 226, 227, and notes); and the power to make such allowance exists irrespective of statutory authority (19 C.J. 228; 21 Cyc. 1604, and cases there cited). Such an allowance rests upon the principle that in every action between the husband and wife the husband is liable for "costs" in any event, and the wife is allowed counsel fees and suit money for costs "to enable her to bring her case in court," without which the right to bring an action against her husband would be illusory and a mockery. 1 R. C. L. 909-912. The amount of such allowance has always rested in the discretion of the court, and cannot be reviewed "unless there is clearly an abuse of discretion." The amount of alimony is also discretionary with the trial judge, unless there is a gross abuse of discretion. The whole subject is reviewed with the citations of our authorities in Moore v. Moore, 130 N.C. 333, 41 S.E. 943; also see citations to that case in Anno. Ed. and Jones v. Jones, 173 N.C. 285, 91 S.E. 960, and cases there cited.

A wife engaged in household duties, bearing and rearing children, and being often the cook for the family also, receives no wages, and has no opportunity for gainful occupation, and hence it is elemental justice that she be allowed a reasonable sum for counsel fees and court costs to enable her "to present her side in court," which has always been allowed by the courts, and also the statute now provides alimony pendente lite when she has not sufficient property of her own, so that she may not starve while having the merits of her alleged wrongs investigated by a judge and jury. Especially should she be so allowed when, as the judge found as facts in this case, the husband has stripped her of a home, locked up the provisions, household and kitchen furniture, and by his recriminatory charges seeks to blast the character utterly of the mother of his six children. Whether his charges are true or not only a jury can decide, and she should have a "square deal" to defend herself by an allowance for counsel fees and subsistence till the facts are determined. This is what the Acts of 1852 and 1919, supra, now C. S. 1666, 1667, provide.

ALLEN J. (dissenting).

This is an action by the wife against the husband for support without divorce, brought under section 1567 of the Revisal as amended by chapter 24 of the Laws of 1919. After the action was commenced the plaintiff moved upon notice for an order for support and counsel fees, which motion was supported by the affidavit of the plaintiff, alleging various acts of cruelty and mistreatment, failure of support by the defendant, and abandonment. At the time when the motion was returnable the defendant was not able to be present, and upon request the motion was continued to a future date, the judge requiring the defendant to pay $200 to the plaintiff, which was done and in this order there are certain recitals which will be hereafter referred to. Afterwards the husband appeared and filed an affidavit in which he denied all of the material allegations in the affidavit of the plaintiff, and particularly that he had separated himself from his wife, and, on the contrary, alleged that she had abandoned her home. He also alleged that the...