Hatcher v. Hatcher
| Decision Date | 01 April 1970 |
| Docket Number | No. 7010DC110,7010DC110 |
| Parties | Genevieve HATCHER v. Bruce Y. HATCHER. |
| Court | North Carolina Court of Appeals |
T. Yates Dobson, Jr., Smithfield, for defendant appellant.
McDaniel & Fogel, by L. Bruce McDaniel, Raleigh, for plaintiff-appellee.
The only question presented by this appeal is whether the order appealed from contains sufficient findings of fact to support an award of alimony Pendente lite and counsel fees.
G.S. § 50--16.8(f), which is applicable to this case, provides: 'When an application is made for alimony Pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and The judge shall find the facts from the evidence so presented.' (emphasis added) As pointed out by Parker J., in Blake v. Blake, 6 N.C.App. 410, 170 S.E.2d 87, the present statutory requirement for findings of fact by the trial judge in Pendente lite awards of alimony is a departure from the practice as it existed prior to 1 October 1967.
If it can be said that the trial judge has sufficiently found that the plaintiff is a dependent spouse (50--16.3(a)), and that he has sufficiently found that the plaintiff does not have sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof (50--16.3(a)(2)); nevertheless the order as entered is devoid of a finding that defendant abandoned plaintiff so as to entitle her to relief in her action for alimony without divorce and to alimony Pendente lite upon this motion (50--16.3(a)(1)). Also the order is devoid of a finding that the defendant is capable of making the payments required (50--16.5(a)).
We do not interpret G.S. § 50--16.8(f) to require the trial judge to make findings as to each allegation and evidentiary fact presented. Blake v. Blake, Supra. However, it is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony Pendente lite is justified and appropriate in the case.
Plaintiff-appellee contends that Rule 52(a)(2) of the Rules of Civil Procedure (S.G.Chap. 1A), which became effective January 1, 1970, is controlling in this case and that the judge was not required to make findings of fact unless requested to do so by a party. We do not agree. The Rules of Civil Procedure are of general application and would not abrogate the requirements of a statute of more specificity. Therefore, since G.S. § 50--16.8(f)...
To continue reading
Request your trial
-
Quick v. Quick, 163A81
...to determine the amount of alimony pendente lite. Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971); Hatcher v. Hatcher, 7 N.C.App. 562, 173 S.E.2d 33 (1970). This is so because the Rules of Civil Procedure are of general application and do not abrogate the requirements of a statut......
-
Austin v. Austin
...of alimony pendente lite is justified and appropriate. Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971); Hatcher v. Hatcher, 7 N.C.App. 562, 173 S.E.2d 33 (1970); Blake v. Blake, 6 N.C.App. 410, 170 S.E.2d 87 In the case at bar, the district judge made insufficient factual finding......
-
Peoples v. Peoples
...of the Rules of Civil Procedure entitled 'Findings by the Court' does not apply in awarding alimony pendente lite. Hatcher v. Hatcher, 7 N.C.App. 562, 173 S.E.2d 33 (1970). G.S. § 50--16.8(f), enacted in 1967 to be effective 1 October 1967, is applicable in this case. It provides, among oth......
-
Sprinkle v. Sprinkle
...determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case. Hatcher v. Hatcher, 7 N.C.App. 562, 173 S.E.2d 33 (1970). The trial judge must find the Ultimate facts on each issue which are sufficient to establish that the dependent spous......