Opinion
No. 7126DC384
Filed 4 August 1971
Divorce and Alimony 18 — action for annulment and child custody and support — alimony, counsel fees and child support pendente lite Where plaintiff's complaint specifically sought annulment of her marriage to defendant and custody and support of a minor child of the parties, plaintiff's motion in the cause seeking alimony and counsel fees pendente lite and child support was properly before the court. G.S. 50-13.4 (a); G.S. 50-13.5; G.S. 50-13.6; G.S. 50-16.3 (a); G.S. 50-16.4.
APPEAL by plaintiff from Stukes, District Judge, 22 February 1971 Session of District Court held in MECKLENBURG County.
Lila Belar attorney for plaintiff.
No appearance for defendant.
Plaintiff instituted this action for annulment of her marriage to defendant. As grounds therefor she alleged the existence of a prior marriage of defendant. Plaintiff also alleged that one child was born of her purported marriage to defendant, and that the child had been in her exclusive care and custody since its birth.
Plaintiff filed a motion in the cause seeking alimony and counsel fees pendente lite, and seeking support for the minor child of plaintiff and defendant.
Judge Stukes denied plaintiff's motion in its entirety, stating reasons as follows:
"That the plaintiff has not set forth in her complaint or in any subsequent pleading, any cause of action upon which alimony PENDENTE LITE might be awarded; and
"That, although the plaintiff's complaint prays that the custody of the minor child born of the parties be awarded to said plaintiff, the plaintiff's motion does not request a determination of the custody issue and further that a motion for support and maintenance of the minor child herein involved is not at this time properly before the Court."
Plaintiff appealed.
Plaintiff's complaint specifically seeks an annulment of her marriage to defendant, specifically seeks custody and support of the minor child, and specifically seeks an award of attorney fees for services in connection with the custody and support of the minor child.
Plaintiff's motion in the cause specifically seeks alimony and counsel fees pendente lite, and support for the minor child.
It seems clear that plaintiff has stated a cause of action in which alimony pendente lite may be awarded. And it seems clear that the matter of support for the minor child was before the court.
G.S. 50-16.3 (a) provides that in an action for annulment a dependent spouse shall be entitled to an order for alimony pendente lite when the conditions set forth in sub-sections (1) and (2) are shown to exist. And G.S. 50-16.4 provides authority for an award of counsel fees when alimony pendente lite is available under G.S. 50-16.3 (a).
G.S. 50-13.4 (a) provides, inter alia, that any parent having custody of a minor child may bring an action for support of said child as provided in G.S. 50-13.5; which in turn provides that the action for custody and support, or either, may be joined in an action for annulment. G.S. 50-13.6 provides authority for an award of counsel fees in proceedings for custody and support of minor children.
The order appealed from is reversed and this cause is remanded to the District Court of Mecklenburg County for a proper hearing upon plaintiff's motion for alimony and counsel fees pendente lite, and for support for the minor child of the parties.
Reversed and remanded.
Judges VAUGHN and GRAHAM concur.