Lawrence v. Lawrence

• Decision Date: 27 March 1946
• Docket Number: 305
• Citation: 37 S.E.2d 496,226 N.C. 221
• Parties: LAWRENCE v. LAWRENCE.
• Court: North Carolina Supreme Court

37 S.E.2d 496

226 N.C. 221

LAWRENCE v. LAWRENCE.

No. 305

Supreme Court of North Carolina

March 27, 1946

Plaintiff instituted an action for divorce a mensa in which she moved for alimony for herself and infant child and for attorney's fees pendente lite. At the hearing on the motion 19 October 1945 the court entered an order requiring defendant to pay $8 per week for the support of his child $50 for counsel fees, and $25 to plaintiff 'to defray the necessary and proper expenses of the Court. ' No payment for the use and benefit of plaintiff was required. Defendant gave notice of appeal to this Court.

Thereafter on 5 November 1945, pending the appeal, the defendant was adjudged in contempt for failure to make the payments required in the order of 19 October 1945 and committed to jail. Thereupon he applied to this Court for a writ of supersedeas which issued 16 November 1945.

Charles L. Abernethy, Jr., of New Bern, for defendant appellant.

No counsel contra.

BARNHILL Justice.

The motion of plaintiff to dismiss on the grounds that defendant served no case on appeal cannot be sustained. The case is here for review of alleged error appearing on the face of the record. Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66.

The defendant on his appeal from the order of 19 October relies primarily on the contention that he alleged the adultery of the wife in bar of her right to alimony pendente lite and that the court declined to hear any evidence or to make any finding of fact in respect thereto. He asserts that without such finding the court was without jurisdiction to make the order entered.

The provision making the adultery of the wife a bar to her right to alimony is a part of G.S. s 50-16, relating to subsistence without divorce. It is not included in G.S. s 50-15, under which plaintiff's motion was made.

We may concede, however, that the misconduct of the wife is a matter for consideration on a motion of this nature. Even so, the plea will not avail the defendant for the simple reason the judge did not allow the plaintiff alimony pendente lite. He only required the payment of $8 per week for the use and benefit of defendant's infant child. In no event does the adultery of the wife discharge or bar the defendant's duty in this respect.

Nor can defendant's plea to the jurisdiction of the court for that another action for the custody of the child is now pending be sustained. The record fails to...