Butler v. Butler

• Decision Date: 16 October 1946
• Docket Number: No. 99.,99.
• Parties: BUTLER. v. BUTLER.
• Court: North Carolina Supreme Court

39 S.E.2d 745

BUTLER.

v.BUTLER.

No. 99.

Supreme Court of North Carolina.

Oct. 16, 1946.

Appeal from Superior Court, Nash County; W. J. Bone, Judge.

Action by Thelma H. Butler against G. G. Butler for alimony and support. From order denying plaintiff temporary support, plaintiff appeals, and, from order allowing plaintiff counsel fees, defendant appeals.

On plaintiff's appeal, error and remanded. On defendant's appeal, affirmed.

The plaintiff sued her husband for alimony and support under G.S. § 50-16, quid vide. She alleges in her complaint specific acts of cruelty, including beating, at the hands of her husband, threats againsther life, and conduct which rendered her condition intolerable and life burdensome, and which made it necessary for her health and safety that she leave the domicile of her husband and seek safety elsewhere. It is further alleged that defendant thereafter was convicted of an assault upon her with a deadly weapon and sentenced to a prison term, which sentence was suspended and defendant placed on probation upon condition that he support her and a child of the marriage; and that in compliance with the terms of the probation, he has contributed $85 per month to the support of herself and child every month, save one, since he was placed on probation, which she admits has been adequate to maintain them while they resided with her mother.

She alleges further that she owns no property sufficient to sustain herself and son, that she is in ill health, and unable to earn a livelihood.

She further alleges that defendant has notified her that at the expiration of two years from the date of their separation he will not contribute anything for the support of herself and child; and has declared his purpose at that time to obtain a divorce from her on the grounds of two years separation.

The defendant denies material allegations of the complaint, and for a further defense sets up a separation agreement, alleged to have been made between himself and the plaintiff May 1, 1944, which is made an exhibit to the answer. The agreement is in writing, properly signed and acknowledged, and the notary certifies that it is not injurious to the wife.

After making provision for release of any right which either spouse may have in the other's separate property, now owned or thereafter acquired, the agreement contains the following provision pertinent to the appeal and decision:

"The said husband shall pay to the said wife for the support and maintenance of herself and their said child, and for the education of said child, $37.50 on this 1st day of May, 1944, and $37.50 on the 15th day of May, 1944, and a like amount on the first and fifteenth days of June, July, Au gust, September, and October, 1944, and $42.50 on the 1st day of November, 1944, and $42.50 on the 15th day of November, 1944, and a like amount on the first and fifteenth days of each calendar month thereafter during the minority of said Robert Allen Butler; when said Robert Allen Butler has attained his majority or otherwise becomes self-supporting, that an agreement shall be made between the parties hereto for the payment by said husband to said wife a fair and reasonable amount for her support and maintenance, the amount to be determined by the income of the said husband (or his earning ability), and the then respective financial needs of said husband and wife. Each party hereto reserves the right to appeal to the Resident Judge of the Second Judicial District of North Carolina for a revision in the amount to be paid to the said wife, either for the joint support and maintenance of the said wife and the said Robert Allen Butler, or solely for the support and maintenance of said wife."

Incidental to the noted provisions is paragraph 10, as follows:

"Nothing herein contained shall be construed as limiting or restricting the right and privilege of either of the parties hereto to seek and obtain for any just and legal cause a dissolution of their marriage, provided only that the covenants and agreements herein contained with respect to the custody, support, maintenance and education of the child of the parties hereto, and with respect to the support and maintenance of said wife, shall continue and remain in full force and effect in so far as the parties hereto, and each of them, has the right and power to contract and agree as relates thereto."

Pending a hearing on the merits, the plaintiff petitioned for an allowance of support pendente lite and attorney's fees, and the motion was heard upon notice by Judge Bone at Chambers, May 18, 1946, and the following order was...