Lemons v. Lemons

206 S.E.2d 327 (1974)

22 N.C. App. 303

Edith Opal LEMONS v. Roger Edwin LEMONS.

No. 7415DC422.

Court of Appeals of North Carolina.

July 3, 1974.

*328 Clark, Tanner & Williams by Eugene S. Tanner, Jr., Greensboro, for plaintiff appellee.

David I. Smith, Burlington, for defendant appellant.

BALEY, Judge.

Defendant assigns as error the refusal of the court to grant his motion for a directed verdict. In our view the evidence when viewed in its most favorable light for the plaintiff was not sufficient for submission to the jury, and defendant's motion for a directed verdict should have been granted.

No useful purpose is served by recounting details of the marital difficulties of plaintiff and defendant and endeavoring to assess fault. Suffice to say, plaintiff's own testimony shows that before the separation she and the defendant discussed such separation and agreed that it would be best if they separated. As a consequence of this agreement, defendant moved out of the trailer home leaving plaintiff in possession.

There is no abandonment when the separation is by mutual agreement. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387.

Then, too, the evidence was not sufficient to show that plaintiff was a dependent spouse. A dependent spouse is defined in G.S. § 50-16.1(3) as "a spouse, whether husband or wife, who is actually substantially *329 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."

During the entire marriage plaintiff had worked at Western Electric and was earning more money than defendant at the time of the separation. Her income exceeded her reasonable expenses. There was no showing of a substantial need for support from defendant or to maintain her accustomed station in life. She was in no sense a dependent spouse within the meaning of G.S. § 50-16.1(3).

Alimony is not awarded as a punishment for a broken marriage, but for demonstrated need. Under G.S. § 50-16.2 it can be awarded only to a dependent spouse.

For the reasons stated, the judgment of the trial court is reversed.

Reversed.

MORRIS and HEDRICK, JJ., concur.