Bowes v. Bowes , 43 N.C. App. 586 ( 1979 )

259 S.E.2d 389 (1979) 43 N.C. App. 586

Eula S. BOWES
v.
Mellie Lewis BOWES.

No. 7917DC140.

Court of Appeals of North Carolina.

November 6, 1979.

Gwyn, Gwyn & Morgan by Julius J. Gwyn, Reidsville, for plaintiff-appellee.

O'Connor, Speckhard & Speckhard by Donald K. Speckhard, Greensboro, for the defendant-appellant.

WELLS, Judge.

Defendant presents four assignments of error. We shall deal with them in the order presented.

Defendant assigns as error the trial court's action entering a judgment by default against the defendant. The default judgment was entered by the trial judge, in session, upon a motion by plaintiff for judgment following defendant's failure to respond to a request for admissions or to answer interrogatories duly served upon him. Defendant was duly served with notice that plaintiff was seeking judgment against him and that the motion was scheduled for hearing on 16 October 1978. The matter was not heard on 16 October 1978 and defendant was duly served with notice that it would be heard on 30 October 1978. The defendant had adequate notice and ample time to respond. He did not. Under such circumstances, plaintiff was not required to obtain prior entry of default before the Clerk. There was no procedural error in the entry of default by the trial judge. Whitaker v. Whitaker, 16 N.C.App. 432, 192 S.E.2d 80 (1972).

The defendant also maintains that the trial court erred in ordering the defendant to pay the sum of $2,500 to plaintiff for reimbursement of medical expenses incurred by plaintiff. The trial judge found as facts: that defendant was obligated under a prior consent order to provide health insurance coverage for plaintiff, which he had failed to do; that plaintiff had incurred necessary medical expenses of $3,500, $2,500 of which would have been paid by insurance had the ordered coverage been in effect; and that defendant was reasonably able to pay for the insurance. During the marriage defendant, as husband, was under the common law duty to support his wife, and such support included the payment of her necessary medical expenses. Bowen v. Daugherty, 168 N.C. 242, 84 S.E. 265 (1915). The portion of the order of 19 September 1975 requiring defendant to maintain hospital insurance for plaintiff was in effect an award of alimony—a continuation of support. See, Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967); Martin v. Martin, 26 N.C.App. 506, 216 S.E.2d 456 (1975). The trial court's order under review here was no more than an enforcement of that award.

Defendant additionally contends that the trial court erred in ordering the defendant to increase his alimony payments to plaintiff from $30 to $50. An order for alimony may be modified at any time upon a motion in the cause and a showing of changed circumstances by either party. G.S. 50-16.9. Under the statute a spouse may obtain a modification of the order for permanent alimony upon a showing of changed circumstances, even though the order was by consent. Seaborn v. Seaborn, 32 N.C.App. 556, 233 S.E.2d 67 (1977). The trial judge found that the condition, estate, and earning capacity of the defendant had substantially increased since the time of the entry of the consent order of 9 September 1975, that defendant's accustomed standard of living was substantially better than that which he enjoyed at the time of said consent order; that plaintiff's estate, earning capacity, condition and accustomed standard of living had steadily declined since the time of said consent order; and that defendant was reasonably able to pay and plaintiff was in reasonable need of alimony at the rate of $50 per week. The record supports these findings of fact.

Plaintiff served on defendant a request for admissions on 5 September 1978, in which the necessary elements of a change in circumstances were set forth. At the time of the hearing of 30 October 1978, the request remained unanswered by defendant and thus was admitted. G.S. 1A-1, Rule 36(a). The amount of alimony awarded by the trial court will be disturbed only upon a showing of abuse of discretion. Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649 (1967); Upchurch v. Upchurch, 34 N.C.App. 658, 239 S.E.2d 701 (1977), disc. rev. denied, 294 N.C. 363, 242 S.E.2d 634 (1978); Gibson v. Gibson, 24 N.C.App. 520, 211 S.E.2d 522 (1975). Based on the record before us, we cannot say that the trial judge abused his discretion.

Defendant's fourth assignment of error concerns the award of $750 in counsel fees to plaintiff. This court has held in numerous cases that the award of counsel fees in an alimony action must be supported by sufficient findings of fact. Upchurch v. Upchurch, supra; Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971). The findings in the case before us do not meet the test. The trial judge made no findings of fact, simply concluding that $750 was a "reasonable attorney [sic] fee under the circumstances of this case." This matter must, therefore, be remanded for appropriate findings on the issue of a reasonable attorney's fee.

As to defendant's first, second and third assignments of error, we find no error; as to defendant's fourth assignment, reversed and remanded.

Affirmed in part, reversed and remanded in part.

ARNOLD and WEBB, JJ., concur.