Hinton v. Hinton

195 S.E.2d 319 (1973)

17 N.C. App. 715

Alma D. HINTON v. James W. HINTON.

No. 7310DC46.

Court of Appeals of North Carolina.

March 28, 1973.

*320 R. P. Upchurch, Raleigh, for defendant appellant.

CAMPBELL, Judge.

Defendant contends that the trial court's order granting the plaintiff exclusive possession of the home was improper as such order was not consistent with the findings of fact and conclusions of law in the case. With this contention we agree.

Tenancy by the entirety is an estate in real property where such property is conveyed to husband and wife during coverture. As an incident of that entirety estate the husband is entitled to the full possession, control and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife during their marriage. Highway Commission v. Myers, 270 N.C. 258, 154 S.E.2d 87 (1967); Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472 (1954).

Under the common law, unless and until there is an absolute divorce the husband's right to exclusive use and possession continues. Absolute divorce of the spouses converts the estate into a tenancy in common. Lanier v. Dawes, 255 N.C. *321 458, 121 S.E.2d 857 (1961); Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924); McKinnon v. Caulk, 167 N.C. 411, 83 S.E. 559 (1914).

Although the court has no authority to order the sale of land owned by the entirety in order to procure funds to pay alimony, the rents and profits which belong to the husband may be charged with the support of his wife. Porter v. Bank, 251 N.C. 573, 111 S.E.2d 904 (1960); Holton v. Holton, 186 N.C. 355, 119 S.E. 751 (1923). Such rents and profits have the same status as other income and assets owned exclusively by the husband. In Re Estate of Perry, 256 N.C. 65, 123 S.E.2d 99 (1961).

However, these rents and profits may not be reached unless the wife is entitled to alimony or alimony pendente lite, and such entitlement is determined by statute. Transfer of title or possession of real property is not an end in itself, but rather is only a means authorized by G.S. § 50-16.7 of paying alimony or alimony pendente lite.

Unless the wife claiming support is entitled to alimony or alimony pendente lite she is not entitled to exclusive possession and use of her husband's entirety property. Even G.S. § 50-17, which provides for a "writ of possession" states that such writ is available only where the court (1) grants alimony (2) by the assignment of real estate.

G.S. § 50-16.1, et seq. effective 1 October 1967, keys all awards, in the nature of permanent alimony and alimony pendente lite, to a spouse who is a dependent spouse within the meaning of G.S. § 50-16.1(3). Sprinkle v. Sprinkle, 17 N.C. App. 175, 193 S.E.2d 468 (1972).

A finding by the trial court that plaintiff is neither presently dependent upon the defendant for her support, nor actually in need of such supportthat she is not a dependent spousebut that nevertheless she is in need of and entitled to possession of the home is contradictory and mutually inconsistent. Under any given circumstance, either the complaining spouse is or is not entitled to alimony. There is no authority for the court to state that she is not dependent, but simultaneously order that she be given some form of support.

Reversed.

MORRIS and PARKER, JJ., concur.