Harris v. Harris

128 S.E.2d 123 (1962)

258 N.C. 121

Virginia McCurdy HARRIS v. Richard Foster HARRIS, Jr.

No. 235.

Supreme Court of North Carolina.

November 21, 1962.

*125 W. Faison Barnes, Charlotte, for appellant.

Warren C. Stack, James L. Cole, Charlotte, for appellee.

DENNY, Chief Justice.

Ordinarily, a final order for alimony without divorce terminates an order for subsistence pendente lite. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867. Likewise, when the facts are investigated and findings made as a guide to the court in making temporary allowances, they do not affect the ultimate rights of the parties at the final hearing. Peele v. Peele, 216 N.C. 298, 4 S.E.2d 616.

On the other hand, when the court on the final hearing finds facts based on the defendant's admissions and his testimony given at the hearing, the court may determine that the relief sought by plaintiff and ordered at a previous hearing should be continued as permanent alimony, subject to the further orders of the court. We think from the facts found, which are supported by the evidence, that is what was done in the court below.

The defendant contends that the amounts which the order requires him to pay are excessive. However, he testified in the hearing below, "I do have an idea how much it costs to operate and run the house occupied by my wife and children per month. About $10,000 a year is what they have been living on. * * * (T)hat is a fair and reasonable amount."

*126 The order of Craven, J., which the court below continued in effect, in our opinion, was tantamount to an order for permanent alimony in the amount set out therein, subject to the further orders of the court. This order requires payment by the defendant of $4,800.00 per year for the support of the plaintiff and the two minor children born of the marriage between the parties, both of whom are presumably in college; $126.53 per month principal and interest on the first mortgage on the home; $156.00 per month on a second mortgage on the home; plus taxes in the approximate sum of $500.00 a year; and premiums on fire and extended coverage insurance on the home, the amount of which is not given or estimated in the record. These amounts total less than $9,000.00, which is more than one thousand dollars less than the defendant testified was a fair and reasonable amount for the maintenance of the home and the support of his wife and children. Moreover, the defendant would not be relieved of the payment of the installments on the mortgages referred to herein or the taxes on the property if no order for alimony had been entered.

The case of Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79, was an action instituted for alimony without divorce pursuant to the provisions of G.S. § 50-16. This Court, speaking through Higgins, J., said: "After the trial judge has determined an allowance is justified, the amount is left to his sound judicial discretion, not subject to review except for abuse or error of law. We hold it was proper in this case to award exclusive possession of the home, the furnishings, and the family automobile to the wife, and to require the defendant to make payments on the mortgage in order that the plaintiff and the children may have a place to live. Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555."

The defendant contends and insists that the court below committed error in not ascertaining the net current income of defendant and limiting any award to one-third thereof, citing G.S. § 50-14. The defendant's evidence tends to show that for many years he has been one of the top salesmen for the Pilot Life Insurance Company, earning anywhere from $21,000.00 to $28,000.00 annually. But it also tends to show that he has never lived within his income in recent years. He testified that on 31 December 1961 his assets were $77,007.13 and his liabilities were $96,686.81. He further testified that his earnings in 1960 were $28,000.00 and in 1961 $21,230.78, and that in his operations in Texas he expects to reach his 1960 earnings "either this year or next." While the defendant testified that he earned $21,230.78 in 1961, he also testified that he spent $44,612.44 in that year. Therefore, if we accept his theory of the law, all that is required of him is to be financially irresponsible and to spend more than he makes and as a result thereof he should be relieved of the support and maintenance of his wife and children. Fortunately, the law does not so reward such moral and financial irresponsibility.

It seems clear that while this defendant has the ability and capacity to earn a large income, he has not shown any capacity or disposition to handle his earnings wisely.

It was said in Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912, "To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband was failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife," citing Davidson v. Davidson, 189 N.C. 625, 127 S.E. 682. In the instant case, there is a finding both as to the capacity of the defendant to earn as well as to his actual earnings. Likewise, there is a finding "that the defendant is a man who, by his own admission, is a spend-thrift and whose expenditures have exceeded his income every year for a number of years."

The amount of alimony to be allowed pursuant to the provisions of G.S. § 50-16 *127 is within the sound discretion of the trial court and its order will not be disturbed unless there has been an abuse of discretion. Hall v. Hall, 250 N.C. 275, 108 S.E.2d 487; Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555.

In the last cited case it is said: "Except when the allowance is made following a decree of divorce a mensa et thoro the court, in making the allowance, is not confined to a one-third part of the defendant's net annual income. Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863."

On the record before us, in our opinion the order entered below should be upheld, and it is so ordered.

Affirmed.