Opinion
[Copyrighted Material Omitted]
Morgan, Byerly, Posts&sKeziah by David M. Watkins, High Point, for plaintiff appellee.
William H. Steed, Thomasville, for defendant appellant.
CAMPBELL, Judge.
The defendant assigns as error the order signed by Judge Martin which affirmed Judge Haworth's orders of 13 September 1968. It is his contention that the complaint does not state a cause of action because the plaintiff did not amend her complaint to allege 'G.S. § 50--16.1' in lieu of 'G.S. § 50--16', as was allowed by one of Judge Haworth's orders. He also contends that the complaint does not state a cause of action because it is deficient in other particulars.
The question presented to this Court is whether the complaint as originally filed on 14 February 1968 is sufficient to state a cause of action in view of the reference to G.S. § 50--16, which was repealed as of 1 October 1967. Effective as of 1 October 1967 actions for alimony and alimony Pendente lite are provided for pursuant to G.S. § 50--16.1 through G.S. § 50--16.10. The answer to this question is 'yes'.
In order to state a cause of action, it is not necessary to put in the complaint the statute upon which the pleader is relying. 'The function of a complaint is to state in a plain and concise manner the material, essential or ultimate facts which constitute the cause of action, but not the evidence to prove them. * * * It is not necessary to plead the law. The law arises upon the facts alleged, and the court is presumed to know the law.' Moore v. W O O W, Inc., 253 N.C. 1, 116 S.E.2d 186. A complaint is to be judged by the facts alleged therein, and if the allegations are sufficient, reference to a particular statute is unnecessary. Therefore, such a reference may be regarded as surplusage.
The complaint alleges: one, that the plaintiff and defendant are legally married; two, that the plaintiff, the dependent spouse, is dependent for support upon the defendant, who is the supporting spouse within the meaning and intent of G.S. § 50--16.2; and three, that the defendant 'willfully and unlawfully abandoned this plaintiff while they were living' together and he 'has failed and refused to provide any support for this plaintiff whatsoever and plaintiff has been left in dire need and destitute circumstances.'
'The complaint states a cause of action based on abandonment * * *. Hence it is not necessary to allege with particularity acts and conduct as required when the cause is based on such indignities to the person as to render the condition intolerable and life burdensome.' Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79.
Affirmed.
BROCK and MORRIS, JJ., concur.