Griffith v. Griffith, 287
| Decision Date | 03 November 1965 |
| Docket Number | No. 287,287 |
| Court | North Carolina Supreme Court |
| Parties | Dorothy Lewis GRIFFITH v. David GRIFFITH |
Warren C. Stack, James L. Cole, Charlotte, for plaintiff appellant.
Herbert, James & Williams, by Henry James, Jr., Charlotte, for defendant appellee.
The parties agree that only two questions are presented by this appeal: (1) Did the court commit error in refusing to award the plaintiff alimony pendente lite and the possession of the home? (2) Did the court commit error in refusing to let the plaintiff take a nonsuit?
The record discloses that the court conducted the hearing during a session of the Superior Court. The evidence disclosed that the plaintiff had left the home with the two children and that the plaintiff had substantial income as a music teacher. The defendant not only failed to file any answer or make any charge as to the plaintiff's misconduct, but, on the contrary, testified she was of good character, a good mother, and a fit custodian for the children. Under these circumstances the court was not required to make findings of fact as a basis for its denial of the alimony pendente lite. Creech v. Creech, 256 N.C. 356, 123 S.E.2d 793; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436. The rule applies whether alimony is allowed or is denied. Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158. Subsistence and counsel fees pendente lite are within the discretion of the court. Decision is not reviewable except for abuse of discretion or for error of law. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Harrell v. Harrell, 256 N.C. 96, 123 S.E.2d 220. The foregoing decisions sustain therefusal of the court to award alimony pendente lite and to order the home surrendered to the plaintiff.
Left for decision, however, is the question whether the court committed error in refusing to permit the plaintiff to take a voluntary nonsuit. Ordinarily, a plaintiff who appeals to a trial court for relief (other than by a proceeding in rem) may withdraw the claim and get out of court by taking a voluntary nonsuit. This he may do as a matter of right unless the defendant has asserted some claim or cross action entitling him to affirmative relief. In such event the defendant is entitled to keep the action before the court until his claim is litigated. For citation of authorities, see Strong's North Carolina Index, Vol. 4, 'Trial,' § 29, p. 325. The rule applies to actions for divorce and alimony as in other cases. Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478.
In this case the defendant has not answered and has not assserted any claim or demanded any relief against the plaintiff.
Apparently defense counsel and the court were led astray on the question of nonsuit by what this court said in Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349. In that case, as in this,...
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... ... Miller v. Miller, 270 N.C. 140, 153 S.E.2d 854; Sayland v. Sayland, supra; Griffith v. Griffith, 265 ... N.C. 521, 144 S.E.2d 589; Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123; ... ...
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Brady v. Brady, 601
...is not reviewable except for abuse of discretion or error of law. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218; Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589. However, the discretion of the court in making allowances Pendente lite is not an absolute discretion to be exercised at th......
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...make detailed findings of fact. There was no request for such findings and no charge of the plaintiff's 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. The show cause order issued b......