{ "id": 8550238, "name": "DONALD CRAVEN PRESSON v. NANCY C. PRESSON", "name_abbreviation": "Presson v. Presson", "decision_date": "1971-12-15", "docket_number": "No. 7126DC699", "first_page": "81", "last_page": "85", "citations": [ { "type": "official", "cite": "13 N.C. App. 81" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "174 S.E. 2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "8 N.C. App. 251", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550555 ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0251-01" ] }, { "cite": "154 S.E. 2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567279 ], "opinion_index": 0, "case_paths": [ "/nc/270/0278-01" ] }, { "cite": "158 S.E. 2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572341 ], "opinion_index": 0, "case_paths": [ "/nc/272/0235-01" ] }, { "cite": "179 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554114 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0402-01" ] }, { "cite": "183 S.E. 2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549183 ], "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0286-01" ] } ], "analysis": { "cardinality": 431, "char_count": 10519, "ocr_confidence": 0.519, "pagerank": { "raw": 3.8001498262912874e-07, "percentile": 0.8973986514271681 }, "sha256": "d2fc97f66603eb8e0f61e2fe20f3b463c8f3020f6065c3690f363b174ef78ca7", "simhash": "1:b1e17da27c0b02c8", "word_count": 1777 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Vaughn concur." ], "parties": [ "DONALD CRAVEN PRESSON v. NANCY C. PRESSON" ], "opinions": [ { "text": "PARKER, Judge.\nAppellant\u2019s assignments of error, challenging the validity of the order appealed from on the ground that the trial court made insufficient findings of fact to support its award of alimony pendente lite and counsel fees and its award of child custody and child support, must be sustained. By statute, G.S. 50-16.8 (f) \u201c[w]hen an application is made for alimony pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented.\u201d (Emphasis added.) \u201cWhile the precise factual findings which must be made will vary depending upon the pleadings, evidence and circumstances of each case, the trial judge must make sufficient findings of the controverted material facts at issue to show that the award of alimony pendente lite is justified and appropriate.\u201d Austin v. Austin, 12 N.C. App. 286, 295, 183 S.E. 2d 420, 427.\nIn the case now before us, the trial judge made insufficient findings of fact as to the controverted material facts at issue. While the court found and adjudged that defendant-wife in this case is a \u201cdependent spouse,\u201d such a finding under the circumstances of this case amounted to no more than a conclusion which was unsupported by a finding of fact. As pointed out by Mallard, Chief Judge, in Peoples v. Peoples, 10 N.C. App. 402, 411, 179 S.E. 2d 138, 143, \u201c[t]o find that one is a \u2018dependent spouse\u2019 within the meaning of G.S. 50-16.1(3) is a consequence of two or more related propositions taken as premises, one being the fact that the relationship of spouse exists, and the other consisting of at least the finding that one of the two alternatives in G.S. 50-16.1(3) is a fact.\u201d The two alternatives referred to in the statute are: (1) when one spouse \u201cis actually substantially dependent upon the other spouse for his or her maintenance and support,\u201d and (2) when one spouse \u201cis substantially in need of maintenance and support from the other spouse.\u201d Here, the trial court made factual findings as to the earnings of the parties, but made no finding of fact that the wife in this case is either \u201csubstantially dependent\u201d upon her husband for her maintenance and support or that she is \u201csubstantially in need of maintenance and support\u201d from her husband. Indeed, the factual findings which the court did make as to the earnings of the parties tend to negate a finding that either alternative exists. Thus, the finding in this case that defendant-wife is a \u201cdependent spouse\u201d amounted merely to a conclusion which is not supported by a sufficient finding of fact.\nEven had there been sufficient factual findings to support the court\u2019s conclusion in this case that defendant-wife is a \u201cdependent spouse,\u201d the court\u2019s factual findings would still have been insufficient to support the award of alimony pendente lite under G.S. 50-16.8 or to support the order for counsel fees under G.S. 50-16.4. Under G.S. 50-16.3 (a) a dependent spouse who is a party to an action for divorce, annulment, or alimony without divorce, shall be entitled to an order for alimony pendente lite when :\n\u201c(1) It shall appear from all the evidence presented pursuant to G.S. 50-16.8 (f), that such spouse is entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made; and\n(2) It shall appear that the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.\u201d\nAgain as pointed out by Mallard, Chief Judge, writing the opinion of this Court in Peoples v. Peoples, supra, \u201c[t]he two quoted sections of G.S. 50-16.8 (a) are connected by the word \u2018and;\u2019 it is therefore mandatory that the grounds stated in both of these sections be found to exist before an award of alimony pendente lite may be made.\u201d In the order appealed from in the present case there are no factual findings or even any conclusions stated with respect to either. As to the grounds stated in the first section of G.S. 50-16.3 (a), there should have been sufficient factual findings upon which the legal conclusion may be based that the dependent spouse \u201cis entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made.\u201d As to the grounds stated in the second section of G.S. 50-16.3(a), there should have been sufficient factual findings to establish \u201cthat the dependent spouse has not sufficient means whereon to subsist during the prosecution or defense of the suit and to defray the necessary expenses thereof.\u201d Here, there was neither. Therefore, the award of alimony pendente lite was not supported by sufficient findings of fact and cannot be sustained. Under G.S. 50-16.4 an order for reasonable counsel fees for the benefit of a dependent spouse may be entered \u201c[a]t any time that a dependent spouse would be entitled to alimony pendente lite pursuant to G.S. 50-16.3\u201d; since the order here appealed from is deficient in findings to establish that defendant is entitled to alimony pendente lite pursuant to G.S. 50-16.3, the award of counsel fees under G.S. 50-16.4 is also unsupported and must be reversed.\nAbsent appropriate findings based on competent evidence as to what provisions would best promote the welfare of the minor children of the parties and as to what were the reasonable needs of the children for health, education and maintenance, it was also error for the trial court to award custody of the children and to direct the payments for their support. Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77; Swicegood v. Swicegood, 270 N.C. 278, 154 S.E. 2d 324; In re Moore, 8 N.C. App. 251, 174 S.E. 2d 135.\nThe order appealed from is vacated and the cause remanded for further findings and determination.\nError and remanded.\nJudges Morris and Vaughn concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Hicks & Harris by Richard F. Harris III for plaintiff appellant.", "Welling & Miller, by Charles M. Welling for defendant appellee." ], "corrections": "", "head_matter": "DONALD CRAVEN PRESSON v. NANCY C. PRESSON\nNo. 7126DC699\n(Filed 15 December 1971)\n1. Divorce and Alimony \u00a7 18\u2014 alimony pendente lite \u2014 dependent spouse \u2014 insufficiency of findings\nThe trial court\u2019s findings that defendant-wife is a \u201cdependent spouse\u201d amounted merely to a conclusion which is not supported by a sufficient finding of fact where the court made factual findings as to the earnings of the parties, but made no findings of fact that the wife is either \u201csubstantially dependent\u201d upon the husband for her maintenance and support or that she is \u201csubstantially in need of maintenance and support\u201d from the husband. G.S. 50-16.1(3).\n2. Divorce and Alimony \u00a7 18\u2014 alimony pendente lite \u2014 insufficiency of findings\nThe trial court erred in awarding alimony pendente lite to the wife where the court made no factual findings or even conclusions (1) that the wife \u201cis entitled to the relief demanded\u201d in the action in which the application for alimony pendente lite was made and (2) that she \u201chas not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof.\u201d G.S. 50-16.3 (a)(1), (2).\n3. Divorce and Alimony \u00a7 18\u2014 award of counsel fees \u2014 necessity for proper award of alimony pendente lite\nAn award of counsel fees to the wife under G.S. 50-16.4 cannot be sustained where the court\u2019s award of alimony pendente lite to the wife has been set aside because not supported by sufficient findings of fact.\n4. Divorce and Alimony \u00a7\u00a7 23, 24 \u2014 child custody and support \u2014 insufficiency of findings\nThe trial court erred in awarding custody of the minor children of the parties and in directing payments for their support absent appropriate findings based on competent evidence as to what provisions would best promote the welfare of the children and as to what were the reasonable needs of the children for health, education and maintenance.\nAppeal by plaintiff from Abernathy, Chief District Judge, 9 August 1971 Session of District Court held in Mecklenburg County.\nPlaintiff-husband filed complaint in this action on 28 June 1971 seeking an absolute divorce on the ground of one year\u2019s separation. On 15 July 1971 defendant-wife filed answer and cross-action, alleging that the separation was due to plaintiff\u2019s misconduct and asking that she be awarded custody of three minor children, possession of the home, permanent and pendente lite support for herself and the children, and counsel fees. On 29 July 1971 the answer and cross-action, together with an order directing plaintiff to appear and show cause why the requested pendente lite relief should not be granted to defendant, were served on the plaintiff. On 11 August 1971 a hearing was held pursuant to the show cause order, at which the court refused to permit plaintiff to introduce evidence as to adultery on the part of defendant-wife, since no reply or affidavit alleging adultery had been filed prior to the hearing. The court heard evidence as to where the children had been residing and as to the earnings of the parties, and entered an order containing the following:\n\u201c[TJhat for the purpose of this Order the Court finds as a fact that the Plaintiff has earned for the first six months of 1971, $5,913.29, that the Defendant is a beauty operator and has earnings of $100.00 to $125.00 per week depending on her commissions, that the Plaintiff has a guaranteed salary of $150.00 per week plus commissions, that the Defendant, for the purpose of this Order and not to be binding on the further hearing, is a dependent spouse; ...\u201d\nOn these findings of fact, the court adjudged that \u201cfor the purpose of this Order, the Defendant is a dependent spouse as provided by Chapter 50 of the General Statutes of the State of North Carolina,\u201d awarded custody of two of the children to defendant and custody of the third child to plaintiff, ordered that plaintiff continue to have possession of the home, and ordered plaintiff to make payments of alimony, child support, and attorney\u2019s fees pendente lite. The order directed that this matter be \u201ccontinued for a period of sixty days to permit the Plaintiff to file a reply or other pleadings to allege any defense that he might have as to the Defendant\u2019s cross-action,\u201d and specified that \u201cthis Order is a temporary Order only and a full and complete hearing will be had at the end of sixty days hereof and a temporary Order then entered in compliance with the findings of the Court at that time.\u201d\nTo the entry of this order, plaintiff excepted and appealed.\nHicks & Harris by Richard F. Harris III for plaintiff appellant.\nWelling & Miller, by Charles M. Welling for defendant appellee." }, "file_name": "0081-01", "first_page_order": 105, "last_page_order": 109 }