Little v. Little

• Decision Date: 16 September 1970
• Docket Number: No. 7022SC560,7022SC560
• Citation: 9 N.C.App. 361,176 S.E.2d 521
• Parties: Jeane H. LITTLE v. June C. LITTLE.
• Court: North Carolina Court of Appeals

Page 521

176 S.E.2d 521

9 N.C.App. 361

Jeane H. LITTLE v. June C. LITTLE.

No. 7022SC560.

Court of Appeals of North Carolina.

Sept. 16, 1970.

Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for plaintiff appellee.

Barnes & Grimes by Jerry B. Grimes, Lexington, for defendant appellant.

MALLARD, Chief Judge.

Where the trial court finds the facts, it is the rule in North Carolina that the question of the sufficiency of the evidence to support the findings may be raised on appeal. See G.S. § 1A--1, Rule 52 of the Rules of Civil Procedure. It is also a well-established rule in North Carolina that:

'The court's findings of fact are conclusive if supported by any competent evidence, and judgment supported by such findings will be affirmed, even though there is evidence contra, or even though some incompetent evidence may also have been admitted. * * *' 1 Strong, N.C. Index 2d, Appeal and Error, § 57, pp. 223, 224.

The defendant's first two assignments of error challenge the award of the possession pendente lite of the house in which the parties were living at the time of the separation of the parties and the factual findings upon which the award was based. The court found as a fact that the defendant leased or rented this house from the Grubb Oil Company, a corporation of which the defendant was the president, general manager, and majority stockholder. In his affidavit the defendant asserted that he was still living in the house in question, in which the parties lived together for many years, and that it 'has been open as it has been For the many years we have lived there. She left on her own free will and she can return at her own free will. Two of the children Are living there.' (Emphasis Added.) There was other evidence that the defendant was in lawful possession of the house. The circumstantial evidence was ample to support the findings of the trial judge that the defendant was in the lawful possession of the house as lessee. It was not error for the court, under the provisions of G.S. § 50--16.7, to order the defendant to put the plaintiff in possession of the house pending the trial of this action on its merits.

Defendant's third and fourth assignments of error question the sufficiency of the evidence to support the finding of fact by the trial judge that the plaintiff was a dependent spouse and the defendant was the supporting spouse. In this case the evidence tended to show that the defendant was a wealthy man; that in 1969 the defendant reported to the State of North Carolina an 'adjusted gross income' of $55,704.00 and a 'net taxable income' of $48,931.00; that in 1969 the plaintiff reported to the State of North Carolina an 'adjusted gross income' of $1,281.00 and a 'net taxable income' of $281.00. In his affidavit the defendant stated that for some years prior to the separation, he had been paying his wife $1,000 per month, out of which she was to support the children; that in addition to the monthly payments, he had provided a home, utilities, meat and other foods for the family; and that he had also provided his wife with adequate transportation. There was competent evidence to support the finding by the trial judge that the plaintiff was a 'dependent spouse' within the meaning of G.S. § 50--16.1(3) which reads:

'(3) 'Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.'

There was also competent evidence to support the finding by the trial judge that the defendant was a supporting spouse within the meaning of G.S. § 50--16.1(4) which reads:

'(4) 'Supporting spouse' means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support. A husband is deemed to be the supporting spouse unless he is incapable of supporting his wife.'

By assignments of error five, six, and seven, defendant contends that the trial court erred in finding as facts that on 4 June 1970 the defendant maliciously turned the plaintiff out of doors and that plaintiff was entitled to alimony pendente lite and counsel fees. Where the court finds the facts, as here, the duty of resolving conflicts in the evidence is for the court. Wall v. Timberlake, 272 N.C. 731, 158 S.E.2d 780 (1968). There was competent evidence to support the findings of fact by the court that the defendant maliciously turned the plaintiff out of doors and that the plaintiff was entitled to alimony pendente lite and counsel fees, although there was some evidence that the plaintiff may have substantially contributed to the marital difficulties between the parties.

In defendant's assignments of error eight and eleven, it is contended that the amount of alimony pendente lite ordered paid to the plaintiff is excessive. The amount of alimony pendente lite is to be determined in the discretion of the trial judge in the same manner as the amount of alimony is determined. G.S. § 50--16.3(b). It is provided in G.S. § 50--16.5(a) that:

'(a) Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed...