Moore v. Moore , 130 N.C. 333 ( 1902 )

CLARK, J.

Prior to tbe Statute of 1852, alimony pendente . lite was unknown in tbis State. Wilson v. Wilson, 19 N. C., 377; Earp v. Earp, 54 N. C., 118. Its evident purpose was “to afford tbe wife present pecuniary relief pending tbe progress of tbe action.” Morris v. Morris, 89 N. C., 109. 'Tbe present-statute (Tbe Code, Sec. 1291) provides tbat tbe motion may be beard and determined in or out of term, and certainly tbe wife in sucb case ought not to be left to starve till tbe Judge, or bis successor, shall come to tbe county. Tbe motion is ancillary and not a motion for judgment on tbe merits, or a motion in tbe cause, strictly speaking, and bence it can be beard anywhere in tbe district. Parker v. McPhail, 112 N. C., 502; Fertilizer Co. v. Taylor, Ibid, 141; Ledbetter v. Pinner, 120 N. C., 455. Tbe five days’ notice is required only when tbe motion is beard out of term (Zimmerman v. Zimmerman, 113 N. C., 432), and it was duly given in tbis case. Tbe parties being in Court by the' notice, tbe continuance of tbe motion did not make necessary a renewal of tbe notice.

Tbe language of tbe affidavit annexed to the complaint tbat “’the complainant became a resident of tbis State more than ?two years next preceding tbis cause of action, with her husband, at Liledown, in October, 1898, and she is advised tbat her legal residence has* been there since said time,” is a sub- : stantial compliance with tbe. statute. But to avoid any controversy, tbe petitioner asked leave and amended tbe above to conform literally to tbe statute, to-wit, “tbe complainant has been a resident of tbe State for two years next preceding tbe filing of tbe complaint.” Tbe amendment was in tbe discrettion of tbe Court. Clark’s Code (3d Ed.), Sec. 273, and cases there cited.

Tbe principal contention of tbe defendant, however, is that the residence of tbe complainant, tbe wife, must be an actual one, in tbe sense tbat she must be physically present in tbe State continuously for two- yearsl in order to confer jurisdiction, and, as such, is not the case here, the decree and proceedings are void. The defendant resides here and has been personally served with summons, but it is contended that the wife is not qualified to sue in oux Courts for above reasons. But if she could not sue here, where could she sue ? She could not sue elsewhere, because she could not get personal service on her husband. Harris v. Harris, 115 N. C., 587, 44 Am. St. Rep., 471. This is in effect held in Arrington v. Arrington, 102 N. C., 491, and Harris v. Harris, supra, where the wife left this State and resided in another State and brought suit there, and this Court held the decree valid only because the husband had voluntarily entered an appearance in such action. Besides, she avers, and the Court finds as a fact, that she has not acquired residence elsewhere and had no intention to abandon the residence she had acquired here.

In Smith v. Morehead, 59 N. C., 360, the Court held, what is the general rule, that “the domicile of the husband draws to it the domicile of the wife.” The defendant relies upon Schonwald v. Schonwald, 55 N. C., 367. But that case was an exceptional one in that the wife had never been a resident of this State, but, retaining the residence she had, came into this State after her husband had been residing here for eight years, and, without acquiring residence here, began her action. In the case at bar, the plaintiff came here in 1898 with her husband, and acquired residence, and in 1899 left for another State for a temporary purpose without intention of changing the residence acquired here, and, returning here, was disavowed by her husband, and brings this action more than two years after her residence had begun here.

The Judge finds the following facts: “The plaintiff had been a resident of North Carolina for more than two years next preceding the filing of her complaint; that her residence began with her husband at Liledowm, N. C., in the Fall of 1898, at which place the appellant has since permanently resided ; that ini going to California under protest, and at the instance of her husband, the plaintiff never intended toi make that State her residence, nor to sever her residence from that of her husband; that the plaintiff’s residence has always been that of her husband.” Thus-, the residence of the plaintiff for the required period is not only averred in the complaint and affidavit affixed thereto', hut is found as a fact by the Court below upon the evidence, and we are bound by such finding of fact for the purposes of this appeal.

Alimony pendente lite was first allowed, as already said, in this State, by Chapter 53, Laws 1852. Thereafter, in Earp v. Earp, 54 N. C., 118, the Court held that an appeal would not lie from such interlocutory decree granting alimony, upon the ground that it would defeat the purpose for which the statute was enacted. But in Taylor v. Taylor, 46 N. C., 528, it was held that an appeal would lie from a refusal to grant alimony pendente lite. Revised Code, Chap. 39, Sec. 15, amended the statute to' allow an' appeal from granting or refusing the allowance. The present statute is Section 1291 of The Code, which provides that the complainant must set forth such facts as, when found to be true by the Judge, shall entitle her to the relief.

Whether the wife is entitled to alimony is a question of law upon the facts found, and that is reviewable on appeal by either party. The Court below must find the facts. “In his findings of fact, the Judge is not confined to the sworn complaint. He may be aided by affidavits offered on the part of the plaintiff and the defendant.” Morris v. Morris, 89 N. C., 109. We can not look into the affidavits.

As to the amount of alimony to' be allowed, the statute says: “The Judge may order the husband to pay her such alimony during, the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties.” This makes tbe amount discretionary, and not reviewable on appeal unless there has been an abuse of discretion. Miller v. Miller, 33 Fla., 453, 24 L. R. A., 137; 1 Am. and Eng. Enc., 476, 477. In this case, it is found as facts upon tbe testimony'that tbe appellant is worth $80,000' to $100,000; that tbe reasonable income of bis property is from $8,000 to $10,000 per year; that tbe plaintiff is absolutely without means of subsistence and unable to meet tbe expenses of her suit. Tbe litigation requires, and will require doubtless, from tbe tenor of tbe affidavits, attorneys and other expenses not only here, but in Kentucky, Ohio, Indiana and California, to prepare her case. Still, an allowance of $4,000 seems to us a large one to be made before the jury has passed! upon tbe issues, at tbe trial of which it may possibly be found that tbe plaintiff is not entitled to any relief. If those issues shall be found in her favor, then tbe Court below could act with greater freedom. We can not say, however^ that tbe amount adjudged by bis Honor was so' gross as to be an abuse of tbe discretion reposed in him by tbe statute. As tbe statute provides “such order may be modified or vacated at any time on the application of either party, or of any one interested,” tbe defendant has still bis remedy by application to tbe proper Judge, who may affirm tbe present allowance or modify it, as to him “shall appear just and proper,” but tbe judgment, if modification is refused, would not be ap-pealable, as we have just held tbe allowance is not reviewable on appeal, unless when an abuse of discretion is shown, and besides such course would prevent any settlement of this preliminary matter by' successive appeals intervening.

After complaint filed, there was no reason why, upon notice, tbe motion should not be made for alimony pendente lite before tbe return term. Tbe urgency of plaintiff’s needs for subsistence and for means to prepare ber case may have required it.

Upon consideration of all the exceptions, we find

No Error.