#### JAMES GARNER v. BEULAH B. GARNER

No. 708DC517

(Filed 30 December 1970)

Divorce and Alimony § 16— counterclaim for alimony — sufficiency of evidence

The trial court erred in the allowance of plaintiff husband’s motion for a directed verdict dismissing defendant wife’s counterclaim for alimony where there was substantial evidence to permit the jury to find (1) that plaintiff is a “supporting spouse” and defendant is a “dependent spouse” as defined in G.S. 50-16.1, and (2) that plaintiff has abandoned defendant and has wilfully failed to provide her with necessary subsistence according to his means and condition so as to render her condition intolerable and her life burdensome. G.S. 50-16.2.

Appeal by defendant from Hardy, District Judge, April 1970 Session of Wayne District Court.

Plaintiff husband filed complaint seeking an absolute divorce on the grounds of one year’s separation. Defendant wife filed answer denying the separation, and in a further answer and counterclaim alleged that plaintiff had abandoned her and was living in adultery, that he earned a substantial income but failed and refused to furnish her with adequate support, and that she was unable to work because of illness. She prayed for alimony, alimony pendente lite, and counsel fees. An order was entered awarding defendant alimony pendente lite and counsel fees.

At the conclusion of all of the evidence, plaintiff’s motion for a directed verdict dismissing defendant’s counterclaim was allowed. The jury answered issues finding that plaintiff and defendant had not lived continuously separate and apart from each other for one year next preceding filing of the complaint. Judgment was entered dismissing plaintiff’s action for divorce and defendant’s counterclaim for alimony and vacating the order for alimony pendente lite. Defendant appealed.

No counsel for plaintiff appellee.

Dees, Dees, Smith & Powell by Tommy W. Jarrett for defendant appellant.

*287PARKER, Judge.

Appellant’s sole assignment of error is directed to the allowance of plaintiff’s motion for a directed verdict dismissing her counterclaim for alimony. The assignment is well taken. Review of the record reveals there was sufficient substantial evidence to permit a jury to find (1) that plaintiff is a “supporting spouse” and defendant is a “dependent spouse” as defined in G.S. 50-16.1, and (2) that plaintiff has abandoned defendant and has willfully failed to provide her with necessary subsistence according to his means and condition so as to render her condition intolerable and her life burdensome. These permissible findings would support an'award of alimony. G.S. 50-16.2. The result is that the judgment dismissing plaintiff’s action for divorce is affirmed; and the judgment dismissing defendant’s counterclaim is

Reversed.

Chief Judge Mallard and Judge Graham concur.