Privette v. Privette

227 S.E.2d 137 (1976)

30 N.C. App. 305

Betty H. PRIVETTE v. Warren PRIVETTE, Sr.

No. 7626DC245.

Court of Appeals of North Carolina.

August 4, 1976.

*140 James L. Roberts, Charlotte, for plaintiff appellee.

Lacy W. Blue, Charlotte, for defendant appellant.

MORRIS, Judge.

Defendant, contending that the trial court erred in denying his motion to dismiss, maintains that plaintiff condoned the acts of defendant. We disagree.

The plaintiff testified that she no longer shared "the same marital bed" with defendant as of June 1974 and in view of this testimony "[t]here is no condonation from the fact that the parties continue to live under the same roof if it affirmatively appears that they do not have sexual intercourse." 1 Lee, N.C. Family Law, § 87, pp. 332-333 (1963). Also see: 27A C.J.S. Divorce § 61, p. 207; 32 A.L.R.2d, Condonation of Cruel Treatment as Defense to Action for Divorce or Separation, § 12, pp. 107-176.

One Court, moreover, goes even further, stating that ". . . sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief." Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 605-606 (1951). We consider the reasoning in Brown correct and adopt its interpretation of the law in this area.

Moreover, the affirmative defense of condonation must be carried by the defendant. See: Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964). Here, the defendant simply has not carried this burden. In short, there is no merit to defendant's contention that the evidence indicated condonation as a matter of law.

Defendant next contends that the trial court failed to make sufficient findings of fact with respect to alimony pendente lite, custody and child support.

In its findings of fact, the trial court, in pertinent part, found:

"5. That the defendant is an able-bodied self-employed person engaged in the upholstery business in a shop located on the premises at 126 Pineville Road, Matthews, North Carolina. 6. That the Plaintiff is unemployed and in the past had been employed as a nursery teacher with the Matthews Baptist Church and earned for the tax year ending 1972, $1,378.00, and earned $2,420.00 for the tax year 1973 and had earnings of $1,495.00 for the tax year 1974 and the Plaintiff is presently unemployed outside the home and works in the home. The Defendant for a nine-week period for August and September, 1975, had a net profit of $1,391.13, an average income per week of $154.17. The Defendant's net profit for the tax year of December 31, 1974, was $4,376.65. 7. Based upon the foregoing findings concerning the earnings of the respective Plaintiff and Defendant the Court finds the fact that the said Plaintiff is a dependent spouse as defined in North Carolina General Statute, Section 50-16.1(3) and the said Defendant is the supporting spouse as defined in North Carolina General Statute, Section 50-16.1(4). 8. . . . That the Plaintiff and said minor child born of the union are actually and substantially dependent upon the Defendant for their maintenance and support and are substantially in need of maintenance and support from the Defendant. 9. The Plaintiff and Defendant are both fit and proper persons to have the care, control and custody of the said minor *141 child born of this marriage, to wit: Amy Elizabeth Privette, however, the Court finds the fact that it is in the best interest of the said minor child, Amy Elizabeth Privette, that she be placed in the exclusive care, control and custody of the said Plaintiff. 10. The Court finds as a fact that the said Defendant, Warren Privette, Sr., is a fit and proper person to have reasonable visitation of the said minor child born of this union, to wit: Amy Elizabeth Privette. . . . . . 13. The Court after having found as a fact that the Plaintiff is the dependent spouse and the Defendant is the supporting spouse and the Plaintiff is without means to defray costs of this action, however, in the discretion of the Court, counsel fees are denied Plaintiff's counsel. The Court finds as a fact that the Defendant has earnings and/or an estate from which he can pay reasonable amounts for alimony pendente lite for the Plaintiff and child support."

The court directed defendant to pay to plaintiff $175 per month child support and $125 per month alimony pendente lite and further directed that plaintiff and the child should have the use of one of the houses owned by plaintiff and defendant and that plaintiff should have the exclusive use of one of the automobiles owned by defendant. The court refused to award counsel fees for plaintiff.

Insofar as the defendant contends error with respect to alimony pendente lite, we find no merit to his contention. See: Eudy v. Eudy, 288 N.C. 71, 215 S.E.2d 782 (1975). Cf.: Newsome v. Newsome, 22 N.C.App. 651, 207 S.E.2d 355 (1974); Manning v. Manning, 20 N.C.App. 149, 201 S.E.2d 46 (1973). However, we agree with defendant that the findings of fact with respect to custody and child support are insufficient. See: Powell v. Powell, 25 N.C.App. 695, 214 S.E.2d 808 (1975); Manning v. Manning, supra.

The order of the trial court is, therefore, affirmed in part and reversed in part. A new hearing is necessary with respect to custody and child support so that proper findings and conclusions thereon may be entered. See Powell v. Powell, supra.

Affirmed in part; reversed in part.

VAUGHN and CLARK, JJ., concur.