Vaughan v. Vaughan

• Decision Date: 17 March 1937
• Docket Number: 108.
• Citation: 190 S.E. 492,211 N.C. 354
• Parties: VAUGHAN v. VAUGHAN.
• Court: North Carolina Supreme Court

190 S.E. 492

211 N.C. 354

VAUGHAN v. VAUGHAN.

No. 108.

Supreme Court of North Carolina

March 17, 1937

Appeal from Superior Court, Nash County; M. V. Barnhill, Judge.

Divorce action by Ross L. Vaughan against Mrs. Elizabeth S. Vaughan wherein the defendant filed a cross-action. From an order granting the defendant alimony pendente lite and attorney's fees, and an order granting a motion to sell the land of the plaintiff to enforce the alimony payments and attorney's fees, the plaintiff appeals.

Order granting alimony pendente lite and attorney's fees affirmed, and error as to order granting motion to sell lands of plaintiff reversed.

This was an action brought by plaintiff against defendant, his wife, for a divorce a mensa at thoro. The defendant denied the allegations of the complaint and set up a cross-action alleging, among other things: "That on December 9, 1935 the plaintiff, without any just cause or excuse, willfully abandoned the defendant and the infant child born of the marriage, and since that time has willfully failed, neglected and refused to provide any home for his wife and child, and also has willfully failed, neglected and refused to make adequate provision for the maintenance and support of his said wife and child. That the defendant and the said child of the marriage are without property, income or means of support. That the plaintiff is able-bodied, highly educated and is the owner of and in possession and control of real and personal property of the approximate value of $20,000.00, a part of which is valuable farm land, upon which he carries on extensive farming operations, and from which he receives a substantial income, the exact amount of which is unknown to this defendant. That the defendant has not sufficient means whereon to subsist during the prosecution of this cross-action and to defray the necessary and proper expenses thereof."

Defendant's prayer was as follows: "1. That the plaintiff take nothing by his action. 2. That the defendant be granted a decree of divorce a mensa et thoro. 3. That an order be made compelling the plaintiff to pay to the defendant such alimony as the Court may think reasonable, just and proper, having due regard to the circumstances of the parties. 4. That the Court make an order requiring and compelling the plaintiff to make provision for the maintenance and support of the defendant and the child of the marriage pendente lite, and requiring and compelling that he pay the necessary expenses of the prosecution of the defendant's cross-action including a reasonable allowance for counsel fees." The plaintiff replied denying the material allegations of the defendant in her cross-action, and set up his financial status.

The court below rendered the following judgment: "(In Chambers, Oct. 10, 1936). The plaintiff herein instituted an action for divorce a mensa et thoro in the Superior Court of Nash County. The defendant filed answer denying the allegations of the plaintiff and setting up a cross-action for divorce on the grounds of abandonment and for alimony pendente lite and for counsel fees. The cause now comes on to be heard before the undersigned Judge on the motion for alimony pendente lite and counsel fees, both plaintiff and defendant being present and each being represented by counsel. From the affidavits filed and read in evidence and the oral testimony offered, the Court finds as a fact that the plaintiff willfully abandoned the defendant on or about December 9, 1935, and that since said date he has not provided the defendant with a home or necessary subsistence. The Court further finds that he has contributed $15.00 per month for the support of his infant child, but that said contribution is insufficient for the reason that said child is a bottle baby and the cost of the milk makes $15.00 per month inadequate. The Court further finds that the plaintiff has not been profitably employed, except as hereinafter set out, since about November 1, 1935, at which time he voluntarily surrendered or declined to accept a lucrative position, that he is well educated and is capable of earning a substantial salary and that his present unemployment is due to his own act. Since about November 1, 1935, the plaintiff has engaged in the supervision of a four-horse farm but his lack of attention to said farm is such that he was unable to tell approximately the amount of crops he has made this year what he owes thereon or what the prospects of profits are. The Court finds that while $60.00 per month is inadequate support for the defendant and her child, said amount is all that the defendant can reasonably be expected to pay at this time. It is, Therefore, Ordered and Adjudged that the defendant, Elizabeth S. Vaughan, be and she is hereby allowed the sum of $60.00 per month alimony pendente lite for the support of herself and infant child; and she is allowed the additional sum of $150.00 to be credited on such counsel fees as the Court may allow at the final determination of this action. The said Ross L. Vaughan is ordered and directed to pay said alimony on the first day of each and every month, the first payment for the month of October to be made on or before the 17th day of October, and each payment thereafter to be made on or before the 5th day of each month, beginning with the month of November, 1936, and the said Ross L. Vaughan is ordered and directed to pay said counsel fees in monthly installments of $50.00 each not later than the 5th day of November and December, 1936, and January, 1937. It is Further Ordered and Adjudged that the monthly installments for alimony herein allowed, together with the counsel fees shall constitute a specific lien upon all the real estate of the plaintiff until the same is paid, and the cause is retained to the end that the defendant may, upon default in payment of said alimony, move the Court for the appointment of a commissioner to sell said lands to satisfy said lien, and for such other motions as may be proper. This the 10th day of October, 1936. M. V. Barnhill, Resident Judge Second Judicial District."

To the foregoing order the plaintiff excepted, assigned error, and appealed to the Supreme Court. The court below fixed the case on appeal to this court. During the pendency of the appeal a motion in the cause was made by defendant before Barnhill, J., on December 19, 1936, to sell the lands of plaintiff to enforce the alimony payments and attorney fees. It was found that plaintiff had not paid the amounts stipulated in the former order.

In the order of December 19, 1936, is the following: "The Court is of the opinion, and holds, that said order allowing alimony and counsel fees is a judgment for the payment of money within the meaning of section 650 of the Consolidated Statutes of North Carolina, and that the defendant has the right to move for the enforcement of said order pending said appeal unless the plaintiff shall give a stay bond, as provided by said Section."

The court appointed a commissioner to sell so much of plaintiff's land as was necessary "to satisfy said lien." The court further ordered: "As provided by section 650, the plaintiff is allowed to execute and file a good and sufficient stay bond in the sum of $400.00, to be approved by the Clerk of the Superior Court of Nash County which bond shall be conditioned upon the plaintiff promptly paying to the defendant all installments of alimony due at the time the Supreme Court's opinion is certified down, and said attorneys' fees, etc. * * * That the motion of the defendant that the plaintiff be attached as for contempt is for the present denied and suspended until after the certification of the Supreme Court opinion. Heard and signed out of term, by consent, parties reserving their right to appeal from conclusions of law and finding of facts contained herein. This the 19th day of December, 1936. M. V. Barnhill, Judge Presiding." To the foregoing order plaintiff excepted, assigned error, and appealed to the Supreme...