Galloway v. Galloway

253 S.E.2d 41 (1979)

40 N.C. App. 366

Gwen Webb GALLOWAY v. Frankie GALLOWAY.

No. 7810DC381.

Court of Appeals of North Carolina.

March 20, 1979.

*43 William A. Smith, Jr., Raleigh, for plaintiff-appellant.

Birzon & Henry, P. A. by Nora B. Henry, Bailey, for defendant-appellee.

MITCHELL, Judge.

Only a dependent spouse is entitled to alimony or alimony pendente lite. G.S. 50-16.2 and 16.3. A dependent spouse is by definition married to a supporting spouse since a dependent spouse always has a spouse "upon whom [he or she] is actually substantially dependent or from whom [he or she] is substantially in need of maintenance and support." G.S. 50-16.1(3) and (4). Conversely, a supporting spouse is by definition married to a dependent spouse. Therefore, a determination that one spouse is a supporting spouse is a determination that the other is a dependent spouse and vice versa.

A dependent spouse is "a spouse, whether husband or wife, who is actually substantially 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." G.S. 50-16.1(3). A wife is actually substantially dependent upon her husband for her maintenance and support or in substantial need of support by him if she is incapable of adequately providing for herself or is capable of adequately providing for herself but does not have a reasonable opportunity to do so. Cf. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960) (capacity of supporting husband to earn rather than actual earnings considered in determining amount of alimony); Robinson v. Robinson, 10 N.C.App. 463, 179 S.E.2d 144 (1971) (same).

Once it is established, however, that the defendant is the plaintiff's husband and that he is capable of supporting her, the defendant is presumed to be the supporting spouse. G.S. 50-16.1(4) provides in part that, "A husband is deemed to be the supporting spouse unless he is incapable of supporting his wife." This sentence of the statute establishes a presumption that a male spouse is the supporting spouse and, conversely, that the female is the dependent spouse. Rayle v. Rayle, 20 N.C.App. 594, 202 S.E.2d 286 (1974). The defendant did not seek during the hearing before the trial court, nor has he sought before this Court, to challenge this presumption on the ground that it constitutes unconstitutionally gender based discrimination. Therefore, we are not required to express an opinion here with regard to the very substantial constitutional questions which would arise should this portion of the statute be challenged on *44 constitutional grounds. 1 Strong's North Carolina Index 3d, Appeal and Error § 3.

The presumption that the husband is the supporting spouse, and thus by definition that the wife is the dependent spouse, controls until evidence has been presented tending to show that the wife is not in fact a dependent spouse. Rayle v. Rayle, 20 N.C.App. 594, 202 S.E.2d 286 (1974). See 2 Stansbury's N. C. Evidence § 215 (Brandis Rev.1973). See also Davis v. Indemnity Co., 227 N.C. 80, 40 S.E.2d 609 (1946). The husband has not borne his burden in such cases until he has offered evidence tending to show that his wife is neither substantially dependent upon him for her maintenance and support nor substantially in need of maintenance and support by him. G.S. 50-16.1(3). Such evidence may be presented in the form of evidence tending to show that the wife is in fact adequately supporting herself or is capable of adequately supporting herself and has a reasonable opportunity to do so but has not sought to support herself. Cf. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960) (capacity of supporting husband to earn rather than actual earnings considered in determining amount of alimony); Robinson v. Robinson, 10 N.C.App. 463, 179 S.E.2d 144 (1971) (same).

The trial court in the present case found that the plaintiff wife had been gainfully employed prior to her marriage to the defendant and was "able-bodied, intelligent and capable to find employment." This finding was not sufficient, however, to support the trial court's conclusion that the plaintiff was not a dependent spouse within the meaning of G.S. 50-16.1(3), as it did not include a finding that the plaintiff had a reasonable opportunity to but did not adequately support herself.

Additionally, the evidence presented would not have supported such a finding. Evidence of a reasonable opportunity by the wife to adequately support herself might have been shown by introducing evidence, if any existed, that the plaintiff did not make reasonable efforts to obtain employment for which she was suited and which was available, that she had refused employment opportunities that were available to her, or that she had been employed in a manner which would have adequately supported her but terminated such employment in order to establish her status as a dependent spouse. As the defendant failed to offer sufficient evidence to overcome the presumption that the plaintiff was a dependent spouse, the trial court erred in concluding in the order appealed from that the plaintiff was not a dependent spouse.

We additionally note that the order appealed from was entered more than one year ago and that some change in the conditions of the parties is likely. Further, the record on appeal does not reflect any evidence with regard to the reasonable value of attorney's fees sought by the plaintiff.

For the reasons previously stated, the order of the trial court from which the plaintiff has appealed will be vacated and the cause remanded to the trial court for a new hearing with regard to the plaintiff's application for alimony pendente lite and counsel fees and for such other actions as accord with applicable law and the present status of the parties.

Vacated and remanded.

ROBERT M. MARTIN and ERWIN, JJ., concur.