Strother v. Strother

223 S.E.2d 838 (1976)

29 N.C. App. 223

Hersel Grady STROTHER v. Howard Odell STROTHER.

No. 7510DC913.

Court of Appeals of North Carolina.

April 21, 1976.

*839 E. Ray Briggs, Raleigh, for the plaintiff.

Cockman, Akins & Aldridge, by David R. Cockman, Raleigh, for the defendant.

BROCK, Chief Judge.

On appeal the wife raises two assignments of error.

The first assignment of error arises out of the following finding of fact in the 29 May 1975 order:

". . . There has been a substantial change concerning plaintiff's income in the form of an addition which will more *840 than make up for her increased needs;. . ."

The wife argues that this finding is not based on competent evidence. In particular she questions whether it was proper for the judge to use the 10 April 1975 letter describing the payments due from the York note as evidence on which to base the finding of fact described above. The wife's reference to the York note payments in her testimony at the hearing prompted the judge to inquire further about the significance of this addition to her income. The letter served to clarify her testimony at trial, and the judge, as the trier of fact in this action, was entitled to request this additional information. If plaintiff's counsel had not agreed to furnish the additional information, it would have been within the province of the judge to examine plaintiff under oath to obtain the information. Ordinarily the use of a letter received by the judge would be inappropriate, but here it is the party who furnished the letter who is complaining. Under such circumstances we see no error prejudicial to plaintiff.

Next the wife argues that it was error to find a change of circumstances in her situation because of the York note payments. It is noteworthy that the effect of the York note on the wife's status as a dependent spouse is not in issue. The only question is whether it was proper to find that the income derived from the York note warranted a reduction in the amount of alimony pendente lite for the wife. The specific amount of alimony pendente lite to be paid a dependent spouse is within the discretion of the trial judge to determine and will not be disturbed on appeal in the absence of an abuse of discretion. Holcomb v. Holcomb, 7 N.C.App. 329, 172 S.E.2d 212 (1970); Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589 (1965). In view of the temporary nature of alimony pendente lite and the specificity of the findings of fact upon which the order is based, we find no abuse of discretion by the judge in this case. We are sympathetic with the wife's argument that the payments from the York note should not be considered income for purposes of determining the amount of alimony pendente lite she is entitled to:

"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. (citations omitted)" Cannon v. Cannon, 14 N.C.App. 716, 189 S.E.2d 538 (1972).

However, whether the York note payments justify a reduction in alimony pendente lite properly lies within the discretion of the trial judge.

The judgment in this case is

Affirmed.

VAUGHN and MARTIN, JJ., concur.