Rowland v. Rowland

• Decision Date: 09 November 1960
• Docket Number: No. 460,460
• Citation: 116 S.E.2d 795,253 N.C. 328
• Parties: Laurice M. ROWLAND v. Bennett A. ROWLAND.
• Court: North Carolina Supreme Court

Page 795

116 S.E.2d 795

253 N.C. 328

Laurice M. ROWLAND v. Bennett A. ROWLAND.

No. 460

Supreme Court of North Carolina.

Nov. 9, 1960

Robert A. Cotten, Fuquay Springs, for plaintiff, appellee.

Charles W. Daniel, Fuquay Springs, for defendant, appellant.

PARKER, Justice.

The complaint appears to be drafted under the provisions of G.S. § 50-16--Alimony without divorce--, although the prayer is only for subsistence and counsel fees pendente lite. However, this stipulation appears in the statement of the case on appeal: 'That the said action purports to be in the nature of prayer for divorce from bed and board and for alimony to plaintiff and support for the children of the marriage between plaintiff and defendant.' There is nothing in the record to indicate such a stipulation was made in the hearing below. Plaintiff in her brief states the action was brought under the provisions of G.S. § 50-16. In the complaint there is no reference to a divorce a mensa et thoro (G.S. § 50-7), and no prayer for such a divorce. In our opinion, a reading of the complaint shows that this is an action for alimony without divorce brought under G.S. § 50-16. It seems that this case was heard below on the theory that it was a proceeding for alimony without divorce, and an appeal must follow the theory of the trial in the lower court. Lyda v. Marion, 239 N.C. 265, 79 S.E.2d 726.

The record contains only the complaint and order for subsistence and counsel fees pendente lite, and stipulation of case on appeal, and appeal entries. The record has no assignment of error. In the appeal entries it has one exception that defendant excepts to the order, 'for that the complaint and summons show on the faces thereof that plaintiff has sufficient means for the prosecution of her suit for divorce a mensa et thoro, and for the further reason that the complaint fails to state a cause of action therefor.'

Defendant's exception is to the order. That presents for decision only two questions: (1) Do the facts found support the order, and (2) does any error of law appear upon the face of the record? Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53.

The court in its order found as a fact that the defendant is a healthy, ablebodied man gainfully employed, and has an income of $410 a month, and that plaintiff is without any property of her own except her wearing apparel and a small amount of household and kitchen furniture, that she has no independent income of her own, and is solely dependent upon her husband for her entire livelihood. Defendant contends that plaintiff gave a cost bond for $400, wherein she stated that she was worth $400 above all her debts and personal property exemptions, and, therefore, the court could not allow her subsistence and counsel fees pendente lite, for the reason that she had sufficient means to cope with her husband in presenting her case to the court. G.S. § 50-16 provides that the judge in a proper case can make an allowance for subsistence and counsel fees pendente lite, 'as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the separate estate of the wife.' Therefore, the fact that the wife has a separate estate of her own does not necessarily defeat her right to the allowance of subsistence and counsel fees pendente lite. Mercer v....