Smith v. Smith

189 S.E.2d 525 (1972)

Priscilla SMITH v. Albert N. SMITH, Jr.

No. 7219DC320.

Court of Appeals of North Carolina.

June 28, 1972.

*526 Bell, Ogburn & Redding by J. Howard Redding, Asheboro, for plaintiff appellee.

Emanuel & Thompson by W. Hugh Thompson, Raleigh, for defendant appellant.

BRITT, Judge.

Defendant contends that the trial court did not make sufficient findings of fact to support his conclusions of law and judgment awarding plaintiff permanent alimony. The contention has merit.

G.S. § 1A-1, Rule 52(a)(1) provides: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."

Among other things the trial court made insufficient findings as to plaintiff being a dependent spouse and the ability of defendant to make the alimony payments imposed. In previous decisions this court has fully discussed the sufficiency of findings of fact and further discussion or repetition here would serve no useful purpose. See Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971); Peoples v. Peoples, 10 N.C.App. 402, 179 S.E.2d 138 (1971); and Hatcher v. Hatcher, 7 N.C.App. 562, 173 S.E.2d 33 (1970).

Defendant contends that the trial court erred in modifying the previous order as to custody of and support for the children in the absence of a motion for modification and absent any showing of changed circumstances. Although the slight modification made in the previous order was hardly prejudicial to defendant, we agree that the contention has merit.

In this cause plaintiff joined her action for custody and support of the minor children with her action for alimony without divorce as provided by G.S. § 50-13.5. One of the effects of Judge Warren's order dated 14 December 1970 was to adjudicate plaintiff's action for custody and support of the children, subject to orders thereafter made pursuant to motion and showing of change of circumstances. When plaintiff's action for alimony without divorce came on for trial before Judge Hammond, the question of permanent alimony was the only question before him and any modification of Judge Warren's order pertaining to child custody and support was error.

Defendant contends that the trial court erred in ordering defendant to pay $300 fees to plaintiff's attorneys. This contention also has merit in view of the fact that the court did not make sufficient findings as to plaintiff being a dependent spouse and defendant being the supporting spouse. G.S. § 50-16.4.

For the reasons stated the judgment appealed from is vacated and this cause is remanded for a new trial.

New trial.

PARKER and HEDRICK, JJ., concur.