Horton v. . Horton

Hoke, J.

Our statute (O. S., sec. 1666) provides that alimony pen-dente lite may be allowed to a wife seeking divorce whenever she sets forth in her complaint such facts as will uphold a judgment for relief, and where the judge, on the hearing of the application, shall find these facts to be true, and shall find further that the wife has not sufficient means for her subsistence and to defray the necessary and proper expenses of the suit. Speaking to this question in Easeley v. Easeley, 173 N. C., 531, the Court said: “The .statute controlling the question (Be-visal, sec. 1566) provides that on a hearing of this character alimony should be allowed when,, plaintiff shall, in her complaint, set forth such facts ‘which, upon application for alimony, shall be found by the judge to be true and to entitle her to the relief demanded in the complaint,’ and in numerous decisions construing the statute it has been held that the judge must find the essential and issuable facts and set them out in detail, so that this Court can determine from the facts as found whether the order for alimony can be upheld as the correct legal conclusion.” Citing Garsed v. Garsed, 170 N. C., 672; Moody v. Moody, 118 N. C., 926; Lassiter v. Lassiter, 92 N. C., 129; Morris v. Morris, 89 N. C., 113.

Under the interpretation of the statute approved in these and other like decisions, there are no sufficient findings of facts by the court below to sustain an award of alimony in the cause. True, his Honor, in the judgment, finds, among other things, “That although she left her husband’s home, she was caused to do so by reason of' treatment accorded her and statements made to her by her husband — among others, that if she would leave and get a divorce from him he would bear the expense of same and pay her a sum of money”; but a careful examination of the statement will disclose that, in so far as it purports to be a finding of abandonment on the part of the husband, it is only a general and inconclusive estimate on the part of his Honor as to the conditions presented, and the only fact determined is that at one time “he offered to pay for a divorce if she would leave and obtain one.” According to defendant’s evidence, this was on one occasion only, and in reply to a threat of the wife to leave him; but in any event, standing alone, it is entirely insufficient to justify a separation of a husband and a wife. The further finding as to defendant’s refusal to pay the hospital fees at Durham, and his inattention while she was there — this took place after plaintiff had left defendant’s home — and although generally pertinent to the inquiry, must take its complexion largely from the correct determination of the principal fact, whether plaintiff was justified in leaving her husband’s home. While abandonment is one of the statutory grounds for a divorce from bed and board, and it is true, as plaintiff contends, that if a husband, by continued and persistent cruelty or neglect, forces his wife to leave him or his home, he may well be held guilty of abandonment. High v. Bailey, 107 N. C., 71; Setzer v. Setzer, 128 N. C., 170. It is equally true that when the wife voluntarily leaves the husband’s home without good cause or sufficient excuse, this charge and its consequences may not be imputed to him.

On the record as now presented, we are of opinion that defendant’s objection must be sustained, and this will be certified, that the order allowing alimony and counsel fees be set aside without prejudice, and that the matter be further proceeded with as plaintiff may be advised.

Reversed.