Holloway v. Holloway

• Decision Date: 04 January 1939
• Docket Number: 765.
• Citation: Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436 (N.C. 1939)
• Parties: HOLLOWAY v. HOLLOWAY.
• Court: North Carolina Supreme Court

200 S.E. 436

214 N.C. 662

HOLLOWAY v. HOLLOWAY.

No. 765.

Supreme Court of North Carolina

January 4, 1939

Appeal from Superior Court, Orange County; Clawson L. Williams Judge.

Suit for divorce by Homer C. Holloway against Nina Neighbors Holloway. From a judgment allowing alimony pendente lite plaintiff appeals.

Error.

In husband's suit for divorce on ground of adultery, wherein wife sought alimony pendente lite and reasonable counsel fees, it was error for court, in determining that wife denied under oath the adultery charge against her in good faith, to refuse evidence offered by the husband bearing on the question of wife's good faith.

In husband's suit for divorce on ground of adultery, where wife did not set up cross-action, finding that wife denied under oath the adultery charged against her and that such denial was made in good faith and that wife was unable financially to employ counsel or to bring witnesses necessary for her defense and that husband was solvent was sufficient to support allowance of temporary support, expense money and counsel fees.

This is an action for divorce instituted by the plaintiff against the defendant on the grounds of adultery.

The plaintiff makes the necessary allegations of marriage and residence and alleges acts of adultery on the part of the defendant. The defendant, answering, denies the allegation of adultery, and alleges that notwithstanding the plaintiff had knowledge of the facts upon which he bases his allegation that the defendant committed adultery in July or August 1936 he continued thereafter to live with the defendant, thereby condoning any alleged misconduct on the part of the defendant. The defendant further in her answer prays that she be allowed alimony pendente lite and reasonable counsel fees. Notice was served on the plaintiff to appear before Williams J., and show cause why alimony pendente lite and counsel fees prayed in the answer should not be allowed.

The motion came on to be heard before Williams, J., in chambers in Durham, N. C., at which time the plaintiff submitted a number of affidavits which he contends establish the alleged adultery of the defendant. The court found "that the defendant had denied under oath the adultery charged against her in the complaint; that such, her denial, is made in good faith; that the court declines to hear and pass upon affidavits as to the truth or falsity of the charge of adultery; that defendant is unable financially to employ counsel to bring to the court the witnesses necessary for her proper defense and properly defend this action; that plaintiff, her husband, is solvent and amply able to pay, etc." Thereupon, judgment was entered allowing alimony pendente lite and counsel fees. Plaintiff excepted and appealed.

Graham and Eskridge, of Hillsboro, and L. J. Phipps, of Durham, for appellant.

Wm. H. Murdock, of Durham, for appellee.

BARNHILL Justice.

In determining the question presented on this appeal it may be well to briefly review the instances in which a wife is entitled to alimony pendente lite and counsel fees and the law in respect thereto: (1) On a motion for alimony pendente lite and counsel fees in an action instituted by a wife against her husband under the provisions of C.S. § 1666 whether the wife is entitled to alimony is a question of law upon the facts found, and the court below must find the facts, upon request. Moore v. Moore, 130 N.C. 333, 41 S.E. 943; McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Caudle v. Caudle, 206 N.C. 484, 174 S.E. 304. The wife is entitled to an allowance on proper showing when she, as defendant, sets up a cross-action in a suit instituted by the husband. Webber v. Webber, 79 N.C. 572. (2) On motion for alimony pendente lite and counsel fees made in an action instituted by the wife against her husband under provisions of C.S.Supp.1924 § 1667, the Judge is not required to find the facts as a basis for an award of alimony unless the adultery of the wife is pleaded in bar, though the better practice would be to do so. Price v. Price, 188 N.C. 640, 125 S.E. 264, and cases there cited. This section as first enacted, Ch. 193, Laws 1871-72, made no provision for alimony pendente lite. This provision was made by amendment to the act by Ch. 24, P.L.1919. It was further amended in 1923 to allow the husband to plead the...