Manning v. Manning

201 S.E.2d 46 (1973)

20 N.C. App. 149

Sybil MANNING v. Amos L. MANNING.

Nos. 733DC703 and 733DC734.

Court of Appeals of North Carolina.

December 12, 1973.

*48 David T. Greer, Greenville, for plaintiff-appellee.

Crisp & Henderson by Mrs. Nelson B. Crisp and Deborah A. Henderson, Greenville, for defendant-appellant.

CAMPBELL, Judge.

Defendant's assignments of error challenging the validity of the order on the grounds that the trial court made insufficient findings of fact must be sustained. "[T]he trial judge must make sufficient findings of the controverted material facts *49 at issue to show that the award of alimony pendente lite is justified and appropriate." Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971).

This case is controlled by Presson v. Presson, 13 N.C.App. 81, 185 S.E.2d 17 (1971), where this Court held that a mere finding that one party is a "dependent spouse" within the meaning of G.S. § 50-16.1(3) is insufficient. Such a finding amounts to no more than a conclusion without the appropriate supporting findings of fact needed to satisfy G.S. § 50-16.1(3) and G.S. § 50-16.3(a). The Presson case, supra, holds that to find a spouse to be a "dependent spouse" there must be a finding that one of the two alternatives in G.S. § 50-16.1(3) is a fact. The two alternatives referred to in the statute are: (1) when one spouse "is actually substantially dependent upon the other spouse for his or her maintenance and support," and (2) when one spouse "is substantially in need of maintenance and support from the other spouse." Here, the trial court made factual findings as to the earnings of the parties, but made no finding of fact that the wife in this case is either "substantially dependent" upon her husband for her maintenance and support or that she is "substantially in need of maintenance and support" from her husband. The finding that the wife is unemployed and that she has no income is not sufficient and the sparse record does not foreclose the possibilities suggested in G.S. § 50-16.1(3) that the wife may be dependent upon and supported by someone other than her husband or that she may not need any support at all.

Even had there been sufficient factual findings to support the court's conclusion that plaintiff-wife is a "dependent spouse", the court's factual findings would still have been insufficient to support the award of alimony pendente lite under G.S. § 50-16.3 or to support the order for counsel fees under G.S. § 50-16.4. Under G.S. § 50-16.3(a) a dependent spouse who is a party to an action for divorce, annulment, or 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."

In the case at bar there were no findings or conclusions with respect to whether the dependent was "entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made" or with respect to whether the dependent spouse had "not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof."

Under G.S. § 50-16.4 an order for reasonable counsel fees for the benefit of a dependent spouse may be entered "[a]t any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. [§] 50-16.3"; since the order here appealed from is deficient in findings to establish that plaintiff is entitled to alimony pendente lite pursuant to G.S. § 50-16.3, the award of counsel fees under G.S. § 50-16.4 is also unsupported and must be reversed.

The trial court did not make appropriate findings based on competent evidence as to what were the reasonable needs of the children for health, education and maintenance. Therefore, it was also error for the trial court to direct the payments for their support without findings of fact from which it could be determined that the order was adequately supported by competent evidence. Crosby v. Crosby, 272 N.C. *50 235, 158 S.E.2d 77 (1967); Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); In re Moore, 8 N.C.App. 251, 174 S.E.2d 135 (1970); Presson v. Presson, supra; Austin v. Austin, supra.

Lastly the trial court failed to separately state and identify the allowances for alimony pendente lite and child support as required by G.S. § 50-13.4(e).

In addition to what has been stated above with regard to the errors contained in the order which was entered, the defendant has presented an even more fundamental question in that the defendant moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim for relief. Actually the motion was intended to challenge the specificity of the claim for relief stated in the complaint. Rather than a motion to dismiss for failure to state a claim under Rule 12(b)(6), we feel that the motion should have been made under Rule 12(e) as being a more appropriate motion requiring a more definite statement of the claim for relief. We will therefore treat the motion as having been made under Rule 12(e).

To review this motion, this Court allowed a writ of certiorari in case No. 733DC734. The complaint alleged:

"8. That the supporting spouse by cruel and barbarous treatment on many occasions endangered the life of the dependent spouse within the meaning of North Carolina G.S. § 50-16.2(6). 9. That the supporting spouse has offered such indignities to the person of the defendant spouse as to render her condition intolerable and life burdensome within the meaning of North Carolina G.S. § 50-16.2(7)."

The defendant asserts that the complaint in the instant case has violated Rule 8(a) of the North Carolina Rules of Civil Procedure. While this Rule does not require detailed fact pleading, nevertheless, we hold that it does require a certain degree of specificity. "It is not enough to indicate merely that the plaintiff has a grievance, but sufficient detail must be given so that the defendant and the Court can obtain a fair idea of what the plaintiff is complaining, and can see that there is some basis for recovery." 2A, Moore's Federal Practice, Paragraph 8.13, 1705 (2d Ed.) ". . . For the true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly,. . ." 2A, Moore's Federal Practice, Paragraph 8.13, 1700 (2d Ed.). Also, see, Wright & Miller, Federal Practice and Procedure, § 1215 at 112-13.

In the instant case the complaint merely alleges that the defendant treated the plaintiff cruelly and offered indignities to her person, using the exact language of the alimony statute, but it does not (as required by Rule 8(a)) refer to any "transactions, occurrencies, or series of transactions or occurrencies, intended to be proved." It does not mention any specific act of cruelty or indignity committed by the defendant. It does not even indicate in what way defendant was cruel to plaintiff or offered her indignities. For all the complaint shows, the alleged cruelty and alleged indignities may consist of nothing more than occasional nagging of the plaintiff or pounding on a table. Such a complaint does not give defendant fair notice of plaintiff's claim. It is merely an "assertion of a grievance", (North Carolina Rules of Civil Procedure, Rule 8, Comment (a)(3)), and it does not comply with Rule 8(a). While the North Carolina Rules of Civil Procedure were primarily patterned after the Federal Rules, nevertheless, Rule 8(a) was also based in part on Section 3013 of the New York Civil Practice Law and Rules, and New York case law is relevant in interpreting this rule. Sutton v. Duke, 277 N.C. 94, 101, 176 S.E.2d 161, 165 (1970). Also, see Note, 48 N.C.L.Rev. at 637-43. Under the New York rule a plaintiff seeking divorce on the ground of cruelty must allege specific acts of cruelty in the complaint. Kaplan v. Kaplan, 56 *51 Misc.2d 860, 290 N.Y.S.2d 345 (Sup.Ct. 1968), aff'd, 31 A.D.2d 247, 297 N.Y.S.2d 881 (1969).

We hold that in the instant case the complaint was not adequate and sufficient, and the motion of the defendant, when treated as a motion under Rule 12(e) should be granted; and to that end the case is remanded to the trial court for an order to the plaintiff to file an amended complaint within a specified time or else the case be dismissed.

Error and remanded.

BROCK, C. J., and PARKER, J., concur.