Ross v. Ross

235 S.E.2d 405 (1977)

Jeanette Finnegan ROSS v. George Jay ROSS.

No. 761DC888.

Court of Appeals of North Carolina.

June 15, 1977.

*409 Twiford, Seawell, Trimpi & Thompson by Russell E. Twiford, Elizabeth City, and Wallace R. Gray, Manteo, for plaintiff-appellee.

*410 LeRoy, Wells, Shaw, Hornthal, Riley & Shearin, P.A. by Roy A. Archbell, Jr., Kitty Hawk, for defendant-appellant.

MORRIS, Judge.

By his initial assignment of error, defendant contends that the trial judge erred in denying his motion for a more definite statement. Of course, the grant or denial of a motion for a more definite statement rests in the sound discretion of the trial judge, Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126 (5th Cir. 1959), and his ruling thereon will not be overturned on appeal absent a showing of abuse of discretion.

Rule 12(e) provides that a motion for a more definite statement is proper only when ". . . a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading . . ." The motion is the most purely dilatory of all the motions available under the Rules of Civil Procedure. Myers & Humphreys, Pleadings & Motions, 5 Wake Forest Intra.L.Rev. 78 (1969). It is not favored by the courts and is sparingly granted because pleadings may be brief and lacking in factual detail, and because of the extensive discovery devices available to the movant. Shuford, N.C. Civil Practice & Procedure, § 12-14, p. 111 (1975). So long as the pleading meets the requirements of Rule 8 and fairly notifies the opposing party of the nature of the claim, a motion for a more definite statement will not be granted. 1A Baron & Holtzoff, Federal Practice & Procedure, § 362, p. 413 (1960); 2A Moore's Federal Practice, § 12.18, p. 2389 (1975), and cases cited therein.

Defendant argues that the complaint failed adequately to notify him "of the transactions, occurrences, or series of transactions or occurrences, intended to be proved" as required by Rule 8(a)(1), North Carolina Rules of Civil Procedure. We cannot agree. The complaint alleged in pertinent part:

"VII. That during their marriage, without fault or provocation on the part of the plaintiff, the defendant offered such indignities to the person of the plaintiff, the dependent spouse, as to render her condition intolerable and life burdensome; that the defendant, by cruel and barbarous treatment endangered the life of the plaintiff; that the defendant abandoned the plaintiff by abusive treatment; assaulted and beat the plaintiff; cursed and used vulgar language toward the plaintiff; threatened her physical safety; took her personal assets and maliciously turned the plaintiff out of doors or forced her to abandon their home on May 22, 1975. VIII. That the defendant is a large man, possesses a violent temper and when aroused has assaulted and struck the plaintiff, as a result of which the plaintiff is in fear of her safety and well-being. IX. That the defendant is an able-bodied man, in good health and physical condition and capable of earning a substantial income, 31 years of age, and since May 22, 1975 has wilfully failed to provide for the plaintiff with necessary subsistence according to his means and conditions so as to render the condition of the plaintiff intolerable and life of the plaintiff burdensome. That the defendant is guilty of constructive abandonment of the plaintiff."

The case of Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973), upon which defendant relies, involved a complaint which is clearly distinguishable from the one in the present case. In Manning, the plaintiff wife's complaint employed the exact language of G.S. 50-16.2 and alleged only that the defendant husband treated her cruelly and offered indignities to her person. This Court held the pleading to be insufficient, stating that

". . . [the complaint] 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 *411 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)." Id. at 155, 201 S.E.2d at 50.

In the present case, however, plaintiff alleged that defendant assaulted and beat her; that he cursed and used vulgar language toward her; that he threatened her physically; that he appropriated her personal assets; and that he forced her to abandon the home on 22 May 1975 and has since failed to provide for her. We believe, and so hold, that plaintiff's allegations were sufficient to comply with the notice requirements of Rule 8. E. g., Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Roberts v. Whitley, 17 N.C.App. 554, 195 S.E.2d 62 (1973). Defendant's remedy for any additional facts consisted of the utilization of discovery and was not a Rule 12(e) motion for a more definite statement. This assignment is overruled.

Defendant's sixth assignment of error relates to the trial judge's conclusions of law. He particularly objects to Conclusion "A" in which the judge found that plaintiff was the dependent spouse within G.S. 50-16.1(3) and that defendant was the supporting spouse within G.S. 50-16.1(4). Defendant contends that the evidence was insufficient to support this conclusion and the subsequent conclusions based thereon. We are constrained to agree.

G.S. 50-16.3 provides that in order to obtain alimony pendente lite, the applicant must be (1) a dependent spouse, (2) entitled to the relief demanded in the action, and (3) without sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof. Hogue v. Hogue, 20 N.C.App. 583, 202 S.E.2d 327 (1974). The facts required by the statutes must be alleged and proved before the order of alimony pendente lite is properly entered. Guy v. Guy, 27 N.C.App. 343, 219 S.E.2d 291 (1975).

Plaintiff's evidence as to her financial condition tended to show that she is presently employed as a sales clerk in a gift shop and earns approximately $72 per week; that she lives in a furnished apartment owned by her mother and pays no rent; and that she has a car payment of $122.

Assuming, arguendo, that plaintiff has established that she is entitled to a divorce a mensa et thoro, she failed to introduce evidence from which the judge could conclude, as he did, that she was the dependent spouse and was without sufficient means to subsist during the pendency of the action and defray its expenses. In Cabe v. Cabe, 20 N.C.App. 273, 201 S.E.2d 203 (1973), this Court held that the mere showing of some of the wife's expenses does not necessarily establish that she is a dependent spouse. Brock, C. J., writing for the Court, stated:

"It seems obvious that she has other monthly expenses but the court is not permitted to speculate, as to the amount. The courts are not blind to the fact that day to day living is expensive, but each person's situation is different. Each case presents different circumstances and the burden is upon the applicant for alimony, or alimony pendente lite, to offer evidence to establish the need in each case." 20 N.C.App. at 275, 201 S.E.2d at 204-05.

Because plaintiff failed to carry her burden in the present case, it was error for the trial judge to enter an award for alimony pendente lite. Consequently, it was likewise error to make an award of counsel fees. Newsome v. Newsome, 22 N.C.App. 651, 207 S.E.2d 355 (1974); Manning v. Manning, supra.

In view of our ruling, we do not reach defendant's other assignment of error.

Reversed and remanded.

HEDRICK and ARNOLD, JJ., concur.