Cannon v. Cannon

189 S.E.2d 538 (1972)

14 N.C. App. 716

Irene C. CANNON v. Sam B. CANNON.

No. 7218DC400.

Court of Appeals of North Carolina.

June 28, 1972.

*540 Lovelace & Hardin, by James B. Lovelace, High Point, for plaintiff-appellee.

Lambeth & Rogers, by Charles F. Lambeth, Jr., Thomasville, for defendant-appellant.

BROCK, Judge.

The defendant through his counsel of record has moved that his brief be amended in the following respects:

"On page 2 of the brief, following the word ARGUMENT in the center of the page, the following words should be inserted:

(Defendant's Exception No. 2, Rpp, 17-18, 26, and Assignment of Error # 2, Rp 27)."

We have allowed this motion.

Also the plaintiff through her counsel of record has moved that the case be dismissed. This motion is denied.

*541 The assignment of error brought forward on this appeal by defendant challenges the court's determination in paragraph number 4 of the order that the plaintiff is a "dependent spouse" and has not sufficient means to subsist during the prosecution of this action and to defray the necessary expenses thereof.

In G.S. § 50-16.3(a) it is provided that a dependent spouse, who is a party to an action for 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."

This Court has held that a "dependent spouse" is entitled to an award of alimony pendente lite only when the above two conditions are met. Davis v. Davis, 11 N.C.App. 115, 180 S.E.2d 374; Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138.

The defendant on this appeal does not question the District Court's finding that the plaintiff has made out a prima facie case for reliefthe first of the above conditions for an award of alimony pendente lite. He only contends that the evidence does not support a determination that the second condition is metthat the plaintiff is a dependent spouse.

A "dependent spouse" is defined in the statute, G.S. § 50-16.1(3), as follows:

"(3) `Dependent spouse' means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse."

Defendant asserts in his brief that plaintiff was not actually substantially dependent upon him and that she was not substantially in need of maintenance and support from him, because she had some income and had more extensive property assets than defendant.

In determining the needs of a dependent spouse, all of the circumstances of the parties should be taken into consideration, including the property, earnings, earning capacity, condition and accustomed standard of living of the parties. G.S. § 50-16.5; Peeler v. Peeler, 7 N.C. App. 456, 172 S.E.2d 915. In the present case, the District Court weighed all the evidence relating to the above circumstances to be considered and made detailed findings relating to these circumstances. We are of the opinion that the court did not commit error in determining that the plaintiff was a dependent spouse, even though there was some disparity between the value of the property owned by the plaintiff and that owned by defendant.

"Alimony pendente lite is measured, among other things, by the needs of the dependent spouse and the ability of the supporting spouse. The mere fact that the wife has property or means of her own does not prohibit an award of alimony pendente lite. Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966)." Peeler v. Peeler, supra.

"In Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964), the following appears: `Facts found by the judge are binding upon this court if they are supported by any competent evidence notwithstanding the fact that appellant has offered evidence to the contrary.' This rule is applicable in the instant case." Peeler v. Peeler, supra. This same principle applies to the case now before us.

The order appealed from is

Affirmed.

MALLARD, C. J., and CAMPBELL, J., concur.