Miller v. Miller , 270 N.C. 140 ( 1967 )

153 S.E.2d 854 (1967) 270 N.C. 140

Janis P. MILLER
v.
W. M. MILLER.

No. 542.

Supreme Court of North Carolina.

April 19, 1967.

Crisp, Twiggs & Wells, by L. Bruce McDaniel, Raleigh, for plaintiff appellee.

Jacob W. Todd, Raleigh, for defendant appellant.

PER CURIAM:

Defendant's first two assignments of error relate to the refusal of the judge to allow him to cross-examine plaintiff and to elicit oral testimony from his mother. In recognition of the limitations of time and the duration of sessions of court, the General Assembly provided in G.S. § 50-16 that applications for alimony pendente lite "may be heard in or out of term, orally or upon affidavit, or either or both." With these words, the legislature gave the judge hearing the motion the discretion to decide in what form he should receive the evidence in his efforts to ascertain the truth. In hearing the motion in the instant case, Judge Olive limited the testimony to that contained in affidavits. This record and case on appeal contain no suggestion that, in so doing, he abused his discretion. He applied the same rule to both parties.

Defendant's third assignment is that the court erred in making any award to plaintiff when "plaintiff's affidavit showed that plaintiff had ample income to meet her needs pending the trial of this cause, without special requirements for a greater income than was already available to her." Suffice it to say that the case on appeal contains no affidavit by plaintiff which shows that she has such funds. On the contrary, the complaint contains the positive averments that she is unable to provide adequate support for herself and to defray the necessary expenses of this action and that defendant has contributed nothing to her support since he separated himself from her in August 1966.

The judge, after hearing the evidence—only a portion of which appellant included in his case on appeal—, awarded alimony pendente lite as set out in the judgment. "(I)t is presumed that he found the facts from the evidence presented to him according to his convictions about the matter and that he resolved the crucial issues in favor of the party who prevailed on the motion." Williams v. Williams, 261 N.C. 48, 55, 134 S.E.2d 227, 232. The amount allowed a wife for her subsistence pendente lite and for her counsel fees is a matter for the trial judge. "His discretion in this respect is not reviewable, except in case of an abuse of discretion." Rowland v. Rowland, 253 N.C. 328, 331, 116 S.E.2d 795, 797. Accord, Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443. No abuse appears here.

It is noted that, in preparing the transcript, appellant completely ignored the July 1, 1963 amendment to Rule No. 19(1) of the Rules of Practice in the Supreme Court of North Carolina. The attention of the bar is once again directed to this rule.

The judgment of the court below is

Affirmed.