Davis v. Davis
| Decision Date | 28 April 1971 |
| Docket Number | No. 7126DC108,7126DC108 |
| Court | North Carolina Court of Appeals |
| Parties | Donna Hicks DAVIS v. Robert Joseph DAVIS. |
Bailey & Davis, by Gary A. Davis, Charlotte, for plaintiff-appellee.
Robertson & Brumley, by Richard H. Robertson, Charlotte, for defendant- appellant.
The evidence before the District Court not being brought forward in the record on appeal, the court's findings of fact properly made must be deemed supported by competent and sufficient evidence. Utilities Comm. v. Electric Membership Corp., 276 N.C. 108, 171 S.E.2d 406. At the outset, however, we observe that findings of fact Nos. 14 and 15 are not properly findings of fact at all but are merely recitations by the court as to what certain evidence tended to show. Where, as in this case, it becomes incumbent on the trial court to make findings of fact, the court should make its own determination as to what pertinent facts are actually established by the evidence, rather than merely reciting what the evidence may tend to show.
By appropriate exceptions and assignments of error, this appeal questions whether the findings of fact properly made support certain of the court's conclusions of law and the provisions of the judgment based thereon. Appellant raises no objection to those portions of the order awarding custody of the minor child to his wife, awarding her exclusive possession of their homeplace and its contents, and directing that he pay $25.00 per week for support of the child. In this connection, the court found as a fact that prior to entry of the order defendant had been paying to plaintiff the sum of $125.00 per month for support of the child, an amount larger than the court ordered him to pay for that purpose. Appellant does contend that the court's findings of fact do not support its conclusion that the plaintiff wife is entitled to an award of alimony Pendente lite, and he contends there was error in those portions of the order which directed him to pay $20.00 per week to his wife for that purpose and to pay the monthly premiums on the two life insurance policies in which the child is named as principal beneficiary.
The statute providing for an award of alimony Pendente lite is as follows:
'(1) It shall appear from all the evidence presented pursuant to G.S. 50--16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and
'(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit...
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