{
  "id": 8554317,
  "name": "BUNN BENNETT v. ANNIE MAE BENNETT",
  "name_abbreviation": "Bennett v. Bennett",
  "decision_date": "1975-02-19",
  "docket_number": "No. 748DC886",
  "first_page": "680",
  "last_page": "682",
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      "cite": "24 N.C. App. 680"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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  "cites_to": [
    {
      "cite": "179 S.E. 2d 138",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
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    {
      "cite": "10 N.C. App. 402",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554114
      ],
      "year": 1971,
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          "page": "410"
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        "/nc-app/10/0402-01"
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  "last_updated": "2023-07-14T19:54:40.635509+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Hedrick concur."
    ],
    "parties": [
      "BUNN BENNETT v. ANNIE MAE BENNETT"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nPlaintiff has abandoned his first 30 assignments of error for failure to argue them in his brief. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.\nBy his thirty-first assignment of error he purports to except to the failure of the trial court to submit the .following issues:\n1. Did the plaintiff abandon the defendant without justification ?\n2. Is the defendant a dependent spouse?\n3. Is the plaintiff the supporting spouse?\nWe note that the first issue was actually submitted to the jury. With respect to the second and third issues, the record shows plaintiff did not properly object and except to the refusal of the trial court to submit the issues tendered.\n\u201cWhere there are no objections or exceptions in the lower court to the issues submitted, or to the court\u2019s refusal to submit issues tendered, appellant may not challenge the issues for the first time on appeal in his assignments of error.\u201d 1 Strong, N. C. Index 2d, Appeal and Error, .\u00a7 32, p. 170, and cases cited therein.\nPlaintiff\u2019s only exception was to the court\u2019s failure to instruct on the above three requested issues. However, the charge of the trial judge is not included in the record on appeal in this case. Therefore, it is not properly before us for review.\nEven if the question were properly before, us, ,we do not agree with plaintiff that the issues of who is a \u201cdependent spouse\u201d and who is a \u201csupporting spouse\u201d within the meaning of G.S. 50-16.1 (3) and (4) should be decided by the jury rather than the trial judge. Although the courts of North Carolina apparently have never decided whether the issues of who is the \u201cdependent spouse\u201d and who is the \u201csupporting spouse\u201d should be decided by the judge or by the jury, we are of the opinion, and so hold, that these questions should be determined by the trial judge. As we noted in Peoples v. Peoples, 10 N.C. App. 402, 410, 179 S.E. 2d 138 (1971) :\n\u201cThe determination of what constitutes a \u2018dependent spouse\u2019 and what constitutes a \u2018supporting spouse\u2019 requires an application of principles of statutory law to facts and are therefore mixed questions of law and fact . . . . \u201d\nMoreover, as noted by Dr. Robert E. Lee in his work entitled North Carolina Family Law:\n\u201c ... It should be unnecessary, it seems to this writer, to submit to the jury the determination of which is the dependent and which is the supporting spouse. These ar\u00e9 complicated questions of fact, often involving accounting and other financial records, and these questions can best be determined by the judge when he sets the amount of the permanent alimony. . . . The facts necessary to prove which spouse is dependent and which supporting are identical with those required to be considered by the judge in determining the amount of the permanent alimony at the final hearing. It would be futile to produce this evidence twice.\u201d 2 Lee, N. C. Family Law, \u00a7 137, at p. 50 (Supp. 1974).\nFor the foregoing reasons, defendant\u2019s assignment of error is hereby overruled.\nJudge Nowell found sufficient facts to establish defendant as the dependent spouse and plaintiff as the supporting spouse and the need of the defendant for support and the ability of the plaintiff to provide support. His findings were supported by competent evidence as well as the ability of the defendant to make the payments awarded.\nNo error.\nJudges Parker and Hedrick concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Wallace, Langley, Barwick & Llewellyn, by P. G. Barwick, Jr., and Richard F. Landis II, for plaintiff appellant.",
      "White, Allen, Hooten & Hines, P.A., by Thomas J. White, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "BUNN BENNETT v. ANNIE MAE BENNETT\nNo. 748DC886\n(Filed 19 February 1975)\nDivorce and Alimony \u00a7 16\u2014 dependent and supporting spouses \u2014 determination by court\nThe determination of who is a \u201cdependent spouse\u201d and who is is a \u201csupporting spouse\u201d within the meaning of G.S. 50-16.1(3), (4) should be made by the trial judge and not by the jury.\nAppeal by plaintiff from Nowell, Judge. Judgment entered 6 June 1974 in District Court, Lenoir County. Heard in the Court of Appeals 16 January 1975.\nThis action for absolute divorce based on one year\u2019s separation was instituted by plaintiff-husband on 6 September 1973. Defendant-wife answered, alleging abandonment in. bar and counter-claiming for temporary alimony, permanent alimony, child custody and support, and attorney fees.\nThe case was tried before a jury. Plaintiff offered evidence that he had been separated from defendant since 4 September 1972. Defendant offered evidence that plaintiff had abandoned her on 4 September 1972, and that prior to that time he had beaten her and whipped her with a belt. Plaintiff admitted striking defendant but denied beating her. Defendant, also testified concerning her financial condition and by cross-examination of plaintiff adduced the fact that plaintiff earned over $11,000 per year but only paid her $50 per month.\nThe trial court submitted the issue of abandonment to the jury, and the jury found that plaintiff had abandoned the defendant as alleged in her answer. The trial court refused to submit issues to the jury relating to whether defendant was a \u201cdependent spouse\u201d and whether plaintiff was a \u201csupporting spouse\u201d within the meaning of G.S. 50-16.1(3) and (4), as requested, by plaintiff. After the verdict, the court made findings of fact concerning the parties\u2019 financial condition and concluded that defendant was a \u201cdependent spouse\u201d and plaintiff was a \u201csupporting spouse\u201d. Plaintiff was ordered to pay defendant $25 per week for alimony, $25 per week for child support, and to pay one-half of all house payments, taxes, insurance and major repairs exceeding $100, until the child of the marriage attained the age of 18 years. \u25a0 \u2019 \u25a0 '\nWallace, Langley, Barwick & Llewellyn, by P. G. Barwick, Jr., and Richard F. Landis II, for plaintiff appellant.\nWhite, Allen, Hooten & Hines, P.A., by Thomas J. White, for defendant appellee."
  },
  "file_name": "0680-01",
  "first_page_order": 708,
  "last_page_order": 710
}