Opinion
(December Term, 1859.)
It is not competent for the Superior Court, on a petition for divorce and alimony, on the question of allowing alimony pendente lite, for the defendant to read his answer, much less affidavits in support of it. It is otherwise upon the question of the amount of the allowance, for in that not only the answer, but affidavits also can be read.
Changed by statute, Rev., 1566. — ANNOTATOR.
MOTION for alimony pendente lite, heard before Shepherd, J., at Fall Term, 1859, of the Court of Equity of HALIFAX.
Conigland and Batchelor for plaintiff. (234)
B. F. Moore for defendant.
Mary C. Shearin had filed her petition to be divorced from her husband, S.C. Shearin, who was a minor. Upon the coming in of the defendant's answer, the plaintiff moved the court to allow her alimony pending the suit. The motion was resisted by the defendant, who offered to read an affidavit of one Crawley, which was in affirmance of the answer and in opposition to the allegations in the petition showing the causes for divorce. This was proposed on the question of allowing the alimony.
The court rejected the evidence offered, and allowed alimony of two-thirds of the income of the husband's estate, to continue until the further order of the court, the defendant being a minor and his estate being in the hands of his guardian. From this order the defendant appealed.
On the argument here, it was contended that the affidavit was competent as influencing the judge's discretion on the question of the amount of alimony.
The question presented on this appeal is, whether it was competent for the Superior Court, on a petition for a divorce and alimony, to hear an affidavit in support of the answer for the purpose of inducing the court not to allow the petitioner alimony pendente lite. This question arises on sec. 15, chap. 39, Revised Code, which is in the following words: "In petitions for divorce and alimony, or for alimony, where the matter set forth in such petition shall be sufficient to entitle the petitioner to a decree for alimony, the court may, in its discretion, at any time pending the suit, decree such reasonable alimony for the support and sustenance of the petitioner and her family as shall seem just under all the circumstances of the case. And from such interlocutory decree there may be an appeal to the Supreme Court, but the Court shall reexamine only the sufficiency of the petition to entitle the petitioner to relief." In the court below, the sufficiency of the matters set forth in the petition to entitle the petitioner to relief was deemed to be the only question which the court had to consider in deciding whether there should be an allowance made to her for the support of herself and her family during the pendency of the suit. We concur in that opinion. The court had no right, under the provision in section 15 of the act referred to, to look into the answer of the defendant or into any affidavit in support of the answer for the purpose of seeing whether her claim was well founded, and of course to refuse her any immediate allowance of alimony if it were deemed ill-founded. The whole object of the act would be defeated in many cases if the practice contended for by the defendant were sanctioned, as is clearly shown by the reasoning of this Court in Taylor v. Taylor, 46 N.C. 528. The clause of the act which gives an appeal to this Court from an interlocutory order of the Superior Court allowing alimony pendente lite confines this Court to the reexamination of the sufficiency of the petition to (235) entitle the petitioner to relief, and we think it is a conclusive inference from this that the Superior Court was confined to the same narrow bounds in deciding whether there ought to be an immediate allowance at all or not.
The other question presented in the argument of the defendant's counsel, as to the amount of the allowance, admits, as we think, of a different solution. As to that, we can perceive no sufficient reason why the judge may not read the defendant's answer as well as hear affidavits for the purpose of ascertaining the true value of the defendant's estate, and thus be able to settle the amount of alimony which, without injustice to him, the petitioner ought to receive pending the suit. We so held in Everton v. Everton, 50 N.C. 202, and we are still of the same opinion. The argument of the defendant's counsel that the allowance pendente lite, which is, of course, made upon a mere prima facie case, was never intended by the statute to be greater than that given by the third section of the act upon a case fully and conclusively proved is very forcible, and will no doubt have its due effect upon the judge who may preside at the next term of the court of equity for Halifax County when the report of the clerk and master ordered at the last term of that court shall have been made.
The interlocutory order from which the appeal was taken is
PER CURIAM. Affirmed.
Cited: Simmons v. Simmons, 62 N.C. 65.
(236)