Black v. Black

226 S.E.2d 858 (1976)

30 N.C. App. 403

Catherine B. BLACK v. James C. BLACK.

No. 7626DC138.

Court of Appeals of North Carolina.

August 4, 1976.

*859 Waggoner, Hasty & Kratt by William J. Waggoner and Robert D. McDonnell, Charlotte, for plaintiff.

Warren C. Stack and Richard D. Stephens, Charlotte, for defendant.

BROCK, Chief Judge.

The purpose of the speedy proceedings for alimony pendente lite is to give the dependent spouse subsistence and counsel fees pending trial of the action on its merits. This result places the dependent spouse on a more nearly equal footing with the supporting spouse for purposes of preparing for and prosecuting the dependent spouse's claim. The final merits of the action are not before the trial judge upon a pendente lite hearing. Therefore, upon a pendente lite hearing, the trial judge may not determine the ultimate property rights of the parties. Kohler v. Kohler, 21 N.C. App. 339, 204 S.E.2d 177 (1974).

In this case the trial judge undertook to determine matters of constitutional proportions concerning the ultimate property rights of the parties. At this pendente lite stage of the proceedings, without consent of the parties to a hearing on the merits and waivers of jury trial, the trial judge was without jurisdiction to proceed in this action as he undertook to do.

The order appealed from is vacated, and the cause is remanded to the district court for such proceedings as may be appropriate.

Vacated and remanded.

BRITT and VAUGHN, JJ., concur.