Byerly v. Byerly, (No. 389.)
| Decision Date | 09 November 1927 |
| Docket Number | (No. 389.) |
| Court | North Carolina Supreme Court |
| Parties | BYERLY. v. BYERLY. |
Appeal from Superior Court, Davidson County; Shaw, Judge.
Action by Bertie Byerly against M. A. Byerly. Plaintiff's motion that reasonable subsistence and counsel fees be allowed her was denied, and she appeals. Affirmed.
This is an action brought by plaintiff against defendant, her husband, under C. S. § 1667. A motion was made pendente lite, upon notice duly served on defendant, that reasonable subsistence and counsel fees be allowed her and her attorneys until final determination of the action. After hearing the complaint, answer, reply, and affidavits, the court below denied the motion until the facts are heard and determined at the trial. Plaintiff excepted, assigned error, and appealed to the Supreme Court.
Phillips & Bower and Walser & Walser, all of Lexington, for appellant.
Spruill & Olive, of Lexington, for appellee.
C. S. § 1667, in part, is as follows:
"If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, * * * and it shall be lawful for such Judge to cause the husband to secure so much of his estate or to pay so much of his earnings, or both as may be proper, " etc.
This section was amended by Public Laws 1921, c. 123, as follows:
"That section one thousand six hundred and sixty seven (1667) of Consolidated Statutes of North Carolina be amended by inserting in line seven (7), between the words 'subsistence' and 'allotted' the words 'and counsel fees'; and by inserting in line twelve, between the words 'subsistence' and 'and, ' the words 'counsel fees': Provided, this act shall not apply in any way to pending litigation."
Further amended by Public Laws 1923, c. 52:
"That section one thousand six hundred and sixty-seven of the Consolidated Statutes be amended by adding at the end of said section the following: 'Provided, that in all applications for alimony under this section it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees.' "
The defendant denied that he had abandoned or separated himself from his wife, but, on the contrary,...
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Williams v. Williams, 407
...resolved the crucial issues in favor of the party who prevailed on the motion. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. This presumption now applies in all respects to an award under G.S. § When the trial judge allows alimony under this sectio......
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Caddell v. Caddell
...in point of fact and in legal contemplation it was the wife who separated herself from the husband. Crews v. Crews, supra; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158; Masten v. Masten, 216 N.C. 24, 3 S.E.2d 274. And this is so, notwithstanding what was said in Skittletharpe v. Skittlethar......
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Deal v. Deal, 310
...v. Holloway, 214 N.C. 662, 200 S.E. 436. And this rule applies where the motion for alimony pendente lite is denied. Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. The discretion given to the trial judge is so wide that he is not required to make formal findings of fact upon such a motion, u......
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Teague v. Teague, 706
...unfaithfulness. Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589; Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. The show cause order issued by and returnable before Judge Gambill was properly issued after the appeal entries had been removed......