Ragan v. Ragan

• Decision Date: 05 January 1938
• Docket Number: No. 742.,742.
• Citation: 194 S.E. 458,212 N.C. 753
• Parties: RAGAN. v. RAGAN.
• Court: North Carolina Supreme Court

194 S.E. 458

212 N.C. 753

RAGAN.

v.RAGAN.

No. 742.

Supreme Court of North Carolina.

Jan. 5, 1938.

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

Action for absolute divorce by J. D. Rag-an against Magnolia Ragan, who filed a cross-action for divorce a mensa et thoro and alimony pendente lite. From the judgment rendered, plaintiff appeals.

Appeal dismissed.

Action for absolute divorce, and cross-action for divorce a mensa et thoro and for alimony pendente lite.

The complaint, duly verified, alleged that plaintiff and defendant were married in June, 1935; that a few days thereafter defendant abandoned plaintiff without just cause and "has been guilty of adulterous relations with numerous persons whose names are at present unknown to plaintiff."

Defendant filed answer in which she denied the material allegations of the complaint, except the fact of her marriage to plaintiff on June 24, 1935; and set up cross-action for divorce from bed and board from the plaintiff on the ground of "cruel and inhuman treatment" by plaintiff, of acts and conduct of plaintiff which "made her life burdensome and unbearable, " and of being "maliciously turned out of her home" by plaintiff. Defendant further alleged: That "she has no property or income sufficient for her livelihood and to aid her in defending her action and protecting her good name"; and that plaintiff has considerable property and income ample to support defendant and defray the expenses of her action. Upon these allegations she prayed that plaintiff's action be dismissed, that she be granted decree of divorce from bed and board; and that she be allowed reasonable attorney's fees and other expenses in defending her action and alimony pendente lite. The answer is verified as provided in C.S. § 529, and not in conformity with C.S. § 1661, as amended by Pub.Laws 1933, c. 71, §§ 2, 3.

After notice, the motion of defendant for alimony pendente lite was heard by the presiding judge who, upon hearing the evidence presented by affidavits and pleadings, "finds the facts to be, for the purpose of this motion, substantially as set out in the defendant's answer and cross action as alleged therein as fully as if incorporated herein in detail"; and that the plaintiff owns property of the assessed value of $3,000, which is its reasonable value, subject to mortgage of $125. Upon these findings of fact, the court rendered the following judgment: "It is, therefore, considered, ordered, and adjudged by the Court that the defendant pay into the office of the Clerk of Superior Court of Durham County the sum of $75.00 on or before the 1st day of October, 1937, $50.00 of said amount for Messrs. McDonald and Bennett, attorneys for the defendant and $25.00 for the use of the defendant and her benefit, and that thereafter on the 1st day of each month the defendant shall pay into the office of the Clerk of Superior Court of Durham County, the sum of $15.00 per month pending the final trial and determination of this action."

From judgment as signed, the plaintiff appealed to the Supreme Court, and assigned...