Rickert v. Rickert

• Decision Date: 13 December 1972
• Docket Number: No. 37,37
• Citation: 282 N.C. 373,193 S.E.2d 79
• Parties: Gloria Overton RICKERT v. James Bryant RICKERT.
• Court: North Carolina Supreme Court

Page 79

193 S.E.2d 79

282 N.C. 373

Gloria Overton RICKERT v. James Bryant RICKERT.

No. 37.

Supreme Court of North Carolina.

Dec. 13, 1972.

Robert S. Swain, by Joel B. Stevenson, Asheville, for plaintiff.

Bennett, Kelly & Long, by Harold K. Bennett, Asheville, for defendant.

BRANCH, Justice.

The principal question for decision is whether Chief District Judge C. Walter Allen erred by ordering defendant to pay plaintiff's counsel fees In any amount. G.S. § 50--16.1 et seq., particularly G.S. § 50--16.3 and G.S. § 50--16.4, are pertinent to decision of this appeal. G.S. § 50--16.4 provides:

§ 50--16.4. Counsel fees in actions for alimony.--At any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50--16.3, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.

G.S. § 50--16.3 provides, in part:

§ 50--16.3. Grounds for alimony pendente lite.--(a) A dependent spouse who is a party to an action for absolute divorce, divorce from bed and board, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when:

(1) It shall appear from all the evidence presented pursuant to G.S. 50--16.8(f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made, and

(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.

We note that G.S. § 50--16.8(f) specifically provides that the judge shall find facts from the evidence presented upon a hearing upon an application for alimony pendente lite. This statutory requirement, effective 1 October 1967, changes the prior rule recognized in the line of cases represented by Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443, that no findings of fact were necessary in alimony pendente lite matters unless adultery was charged against the wife.

The judgment awarding permanent alimony was entered on 25 June 1971, prior to the award of counsel fees. Ordinarily, the award of permanent alimony terminates an order for subsistence pendente lite or counsel fees. Harris v. Harris, 258 N.C. 121, 128 S.E.2d 123. However, the consent judgment awarding permanent alimony expressly provided that the question of counsel fees would be later submitted to and determined by Chief Judge C. Walter Allen. Thus the statutes and rules of law apposite to pendente lite subsistence and counsel fees govern this decision.

The clear and unambiguous language of the statutes under consideration provide as prerequisites for determination of an award of counsel fees the following: (1) the spouse is entitled to the relief demanded; (2) the spouse is a dependent spouse; and (3) the dependent spouse has not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof.

There is some language in our decisions which leaves the impression that the allowance of counsel fees and subsistence pendente lite lies solely within the discretion of the trial judge, and that such allowance is reviewable only upon a showing of an abuse of the judge's discretion. This seems to be plaintiff's contention.

The correct rule, overwhelmingly approved by our Court, is that the facts required by the statutes must be alleged and proved to support an order for subsistence pendente lite. Deal v. Deal, 259 N.C. 489, 131 S.E.2d 24; Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Bateman v. Bateman, 233 N.C. 357, 64 S.E.2d 156; Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384. Proper exercise of the trial judge's authority in granting alimony, alimony pendente lite, or counsel fees is a question of law, reviewable on appeal. Smith v. Smith, 219 N.C. 768, 14 S.E.2d 788; Covington v. Covington, 215 N.C. 569, 2 S.E.2d 558; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436; Dawson v. Dawson, 211 N.C. 453, 190 S.E. 749; Caudle v. Caudle, 206 N.C. 484, 174 S.E. 304; McManus v. McManus, 191 N.C. 740, 133 S.E. 9; Moore v. Moore, 130 N.C. 333, 41 S.E. 943; Morris v. Morris, 89 N.C. 109; Pain v. Pain, 80 N.C. 322; Schonwald v. Schonwald, 62 N.C. 215 (Phil.Eq. 215). See also, Garner v. Garner, 270 N.C. 293, 154 S.E.2d 46; Butler v. Butler, 226 N.C. 594 39 S.E.2d 745; 24 Am.Jur.2d Divorce & Alimony, § 549, p. 672.

Allowance of counsel fees does not Require allowance of subsistence pendente lite. Deal v. Deal, supra. Nor does the allowance of subsistence pendente lite Require the allowance of counsel fees. Schloss v. Schloss, 273 N.C. 266, 160 S.E.2d 5. It is true that when subsistence pendente lite or counsel fees is allowed pursuant to the statutory requirements, the Amount of the allowance is in the trial judge's discretion, and is reviewable only upon showing an abuse of his discretion. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221; Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728; Mercer v. Mercer, supra; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226.

Plaintiff contends that the defendant's stipulation in the order for alimony pendente lite that 'for the purpose of this hearing plaintiff is entitled to such an order. . . .' amounted to the ultimate fact upon which the resident judge could, in his discretion, award counsel fees.

We first consider the effect of this stipulation in the factual context of instant case.

A stipulation is a judicial admission. Nationwide Homes v. Trust Co., 267 N.C. 528, 148 S.E.2d 693; Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460. It has been said in North Carolina that courts look wife favor on stipulations, because they tend to simplify, shorten, or settle litigation as well as saving cost to the parties. Rural Plumbing & Heating, Inc. v. H. C. Jones Constr. Co., 268 N.C. 23, 149 S.E.2d 625; Chisolm v. Hall, 255 N.C. 374, 121 S.E.2d 726.

In Lumber Co. v. Lumber Co., 137 N.C. 431, 49 S.E. 946, this Court considered judicial admissions, and Walker, J., speaking for the Court, stated: 'Such agreements and admissions are of frequent occurrence and of great value, as they dispense with proof and save time in the trial of causes. The courts recognize and enforce them as substitutes for legal proof, and there is no good reason why they should not. . . . While this is so, The court will not extend the operation of the agreement beyond the limits set by the parties or by the law.' (Emphasis added)

It has been the policy of this Court to encourage stipulations and to restrict their effect to the extent manifested by the parties in their agreement. Rural Plumbing & Heating, Inc. v. H. C. Jones Constr. Co., supra; Lumber Co. v. Lumber Co., supra. See also, 50 Am.Jur. Stipulations § 9, p. 610. In determining the extent of the stipulation we look to the circumstances under which it was signed and the intent of the parties as expressed by the agreement. Similarly, '. . . stipulations will receive a reasonable construction with a view to effecting the intent of the parties; but in seeking the intention of the parties, the language used will not be so construed as to give the effect of an admission of a fact obviously intended to be controverted, or the waiver of a right not plainly intended to be relinquished, . . .' 36 Cyc. 1291, 1292; Huegel v. Huegel, 329 Mo. 571, 46 S.W.2d 157.

Judge Martin's order enumerated concisely each of defendant's obligations, all of which related to subsistence and child custody. Further, the fact that the stipulation did not include an award of counsel fees is reflected in the following portion of Judge Martin's order: 'The court expressly refrains from ruling on the question of attorneys' fees for plaintiff's attorneys at this time, and that said motion for attorneys' fees may be ruled upon at the final determination of this action.'

Recognition that allowance of counsel fees had not been considered by either judge was again clearly shown by paragraph 15 of the consent order awarding permanent alimony and child custody signed by Judge Allen on 25 July 1971, to wit:

(15) The court has heretofore expressly refrained from ruling on the question of attorneys' fees for plaintiff's attorneys, and the parties have been unable to agree as to whether or not any attorneys' fees shall be paid by the defendant, and if so, the amount thereof. It is, therefore, agreed that these questions shall be submitted to and determined...