Opinion
No. 761DC108
Filed 21 May 1975
Divorce and Alimony 16 — alimony without divorce — findings required Under G.S. 50-16.3(a) it must appear that the wife is the dependent spouse, that she is entitled to the relief she demands, and that she is without means to subsist during the pendency of the action, and the trial court is required only to find the ultimate facts and need not include evidentiary or subsidiary facts required to procure the ultimate facts.
APPEAL by defendant from Walker, Judge. Order entered 12 November 1974 in District Court, CHOWAN County. Heard in the Court of Appeals 9 April 1975.
Earnhardt Busby, P.A. by Wiley J. P. Earnhardt, Jr., for plaintiff.
White, Hall, Mullen Brumsey by Gerald F. White for defendant.
Plaintiff-wife brought this action against defendant-husband for alimony without divorce. After hearing on plaintiff' motion for alimony pendente lite, the trial court, after finding facts and making conclusions of law, ordered that defendant pay to plaintiff the sum of $250.00 per week in alimony pendente lite, pay her drug, medical, and hospital bills, her counsel fees, and deliver to her an automobile and other personal property. Defendant excepted and appealed.
From a careful examination of the record, we find that the court's findings of fact to which defendant excepts are supported by the evidence. We find those assignments of error are without merit.
Defendant contends that the findings of the trial court do not support the order in that the court failed to make any findings as to plaintiff's living expenses and as to her reasonable needs, relying on Painter v. Painter, 23 N.C. App. 220, 208 S.E.2d 431 (1974). In the Painter case the trial court found that the plaintiff-wife and her daughter had living expenses of $400.00 per month, and it was remanded for that the wife's expenses alone were not set out and there was no finding that the daughter was incapable of self-support; and the ruling therein is limited by the facts of the case, it being obvious that the controlling factor was the failure to separate the support needs of the wife and child.
Under G.S. 50-16.3(a), it must appear that the wife is the dependent spouse; that she is entitled to the relief she demands; and that she is without means to subsist during the pendency of this action. See also 2 R. Lee, N.C. Family Law, 138 (1963). And the trial court is required only to find the ultimate facts and need not include evidentiary or subsidiary facts required to procure the ultimate facts. Medlin v. Medlin, 17 N.C. App. 582, 195 S.E.2d 65 (1973).
We hold that the trial court's findings of fact, some of which are found in so-called "Conclusions of Law", included the required ultimate facts, and the order of the trial court is
Affirmed.
Judges MORRIS and VAUGHN concur.