Peele v. Peele

• Decision Date: 11 October 1939
• Docket Number: 172.
• Parties: PEELE v. PEELE.
• Court: North Carolina Supreme Court

4 S.E.2d 616

216 N.C. 298

PEELE v. PEELE.

No. 172.

Supreme Court of North Carolina

October 11, 1939

S R. Lane, of Rich Square, and J. A. Pritchett and J. H Matthews, both of Windsor, for appellant.

Tyler & Jenkins, of Aulander, and J. Buxton Weaver, of Rich Square, for appellee.

SEAWELL Justice.

In this case plaintiff sued for alimony without divorce under C.S. § 1667, and applied for subsistence and counsel fees pendente lite. From an order making such allowance, defendant appealed.

The power of the judge to allow alimony and attorneys' fees to the wife pendente lite in divorce cases and to find the necessary facts for his guidance in the exercise of that power without the aid of a jury has been long recognized. C.S. § 1666, Michie's Code of 1935. Observe historical note. Formerly, in this State, alimony without divorce was a matter of equity jurisdiction. Crews v. Crews, 175 N.C. 168, 95 S.E. 149. The statutory cause of action was created by Chapter 193, Public Laws of 1871 and 1872. Early decisions on this statute settled in the negative the mooted question whether the court had power to pass upon issues raised in the pleadings and grant permanent alimony, since the right to trial by a jury, where final determination of property rights is concerned, is guaranteed by Article I Section 19, of the Constitution. Crews v. Crews, supra, and similar decisions, are confined to this principle and have no concern with allowances of subsistence and attorneys' fees pendente lite.

The power to make allowances to the wife for support and counsel fees pendente lite in actions for alimony without divorce was given by Chapter 24, Public Laws of 1919, Michie's Code of 1935, Section 1667. The defendant challenges this statute as unconstitutional in that, as he contends, it deprives him of a property right without trial by jury, in contravention of the above cited section of the Constitution.

While of course, it is the privilege of the defendant, if occasion arises, to challenge the constitutionality of both laws, it is difficult to see any distinction in principle between the power given under C.S. § 1667 and that exercised without question under the former laws relating to divorce. Compare the following cases, some of which relate to alimony pendente lite in divorce cases, and others to allowances for support and counsel fees pendente lite in actions for alimony without divorce: Barbee v. Barbee, 187 N.C. 538, 122 S.E. 177; Vickers v. Vickers, 188 N.C. 448, 124 S.E. 737; Vincent v. Vincent, 193 N.C. 492, 137 S.E. 426; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171; Massey v. Massey, 208 N.C. 818, 182 S.E. 446. In actions for alimony and divorce a similar property right, as well as the status of the parties, is also involved.

The power to make these allowances pending the litigation is based, in part at least, on the duty of the husband to support the wife until she has been definitely deprived of the right to such...