Oldham v. Oldham

• Decision Date: 10 October 1945
• Docket Number: 238
• Parties: OLDHAM v. OLDHAM.
• Court: North Carolina Supreme Court

35 S.E.2d 332

225 N.C. 476

OLDHAM v. OLDHAM.

No. 238

Supreme Court of North Carolina

October 10, 1945

This is an action for alimony without divorce.

The defendant, in answering, pleads, in bar of the relief sought among other things, a separation agreement entered into between the plaintiff and defendant April 24, 1942, and duly recorded in the office of the Register of Deeds of Lee County, N. C., on March 19, 1943.

Plaintiff applied for subsistence and counsel fees pendente lite, under G.S. s 50-16. From an order making such allowance, the defendant appeals and assigns error.

K R. Hoyle, of Sanford, for plaintiff.

M G. Boyette, of Carthage, for defendant.

DENNY Justice.

Defendant's sole exception is to the refusal of his Honor to dismiss the action and to the signing of the order allowing temporary subsistence and counsel fees to the plaintiff.

G.S. s 50-16 provides for two separate remedies, one for alimony without divorce, and second, for reasonable subsistence and counsel fees pendente lite. McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833. The amounts allowed to a plaintiff for subsistence, pendente lite and for counsel fees are determined by the trial court in his discretion, and are not reviewable; either party, however, may apply for a modification of the order at any time before the trial of the action. Tiedemann v. Tiedemann, 204 N.C. 682, 169 S.E. 422. We know of no defense that limits the power of a trial court to award subsistence pendente lite, under G.S. s 50-16, except the defense specified in the statute. Expressum facit cessare tactitum. Shore v. Shore, 220 N.C 802, 18 S.E.2d 353; Allen v. Allen, 180 N.C. 465 105 S.E. 11. The defense specified in the statute is: 'That in all applications for alimony under this section it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees. ' Therefore, in an action for alimony without divorce the validity or reasonableness of a separation agreement need not be determined before the court can award temporary allowances. The statute expressly provides that such allowances may be made 'pending the trial and final determination of the issues involved in such action. ' Taylor...