{
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  "name": "BETSY CHOPLIN HAMPTON v. RONALD GRANT HAMPTON",
  "name_abbreviation": "Hampton v. Hampton",
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Parker concur."
    ],
    "parties": [
      "BETSY CHOPLIN HAMPTON v. RONALD GRANT HAMPTON"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nIn order to be entitled to alimony pendente lite one must be a dependent spouse, and the provisions of G.S. 50-16.3 must be met. In Little v. Little, 18 N.C App. 311, 196 S.E. 2d 562 (1973), this Court stated that the trial court must make findings of fact to show three requirements: (1) the existence of a marital relationship; (2) the spouse is either (a) actually or substantially dependent upon the other spouse for maintenance and support, or (b) is substantially in need of maintenance and support from the other spouse; and (3) the supporting spouse is capable of making the required payments.\nDefendant challenges the sufficiency of the court\u2019s findings of fact. There is merit in his contention that the court failed to make any finding with respect to whether he was capable of making the payments.\nCiting Manning v. Manning, 20 N.C. App. 149, 201 S.E. 2d 46 (1973), defendant also contends that the award of alimony pendente lite is insufficient because there was no finding or conclusion that plaintiff was \u201centitled to the relief demanded\u201d as required by G.S. 50-16.3(a). This contention is also correct. The factual findings were held to be insufficient where \u201cthere were no findings or conclusions with respect to whether the dependent was \u2018entitled to the relief demanded by such spouse in the action in which the application for alimony pendente lite is made.\u2019 \u201d Manning v. Manning, supra at 153.\nThe court\u2019s findings also failed to support the award of child support. G.S. 50-13.4 (c) requires \u201c[p]ayments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child. ...\u201d Where the court does not make appropriate findings based on competent evidence as to what are the reasonable needs of the children for health, education, and maintenance, it is error to direct payments for their support. Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967); Manning v. Manning, supra. No findings were made in the instant case concerning the needs of the children.\nDefendant argues that the findings are likewise insufficient to support the order of custody. G.S. 50-13.2 (a) provides that \u201c[a]n order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person ... as will, in the opinion of the judge, best promote the interest and welfare of the child.\u201d\nFindings by the trial court in regards to custody are conclusive when supported by competent evidence. 3 Strong, N. C. Index 2d, Divorce and Alimony, \u00a7 24, p. 377. \u201cHowever, when the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact.\u201d Crosby v. Crosby, supra at 238-239, citing Swicegood v. Swicegood, 270 N.C. 278, 154 S.E. 2d 324 (1967).\nThe court must make findings, based on competent evidence, of whether the best interest and welfare of the children will be promoted by awarding custody to plaintiff or defendant. Powell v. Powell, 25 N.C. App. 695, 214 S.E. 2d 808 (1975). The record contains no finding regarding the best interest and welfare of the children.\nThere is also merit in defendant\u2019s contention that the findings of fact were not sufficient to sustain the award of counsel fees. In Austin v. Austin, 12 N.C. App. 286, 296, 183 S.E. 2d 420 (1971), this Court said:\n\u201c ... It is uncontroverted that G.S. 50-16.4 and G.S. 50-13.6 permit the entering of a proper order for \u2018reasonable\u2019 counsel fees for the benefit of a dependent spouse, but the record in this case contains no findings of fact, such as the nature and scope of the legal services rendered, the skill and time required, et cetera, upon which a determination of the requisite reasonableness could be based. Compare, for example, the evidence and findings in Stanback v. Stanback, 270 N.C. 497, 155 S.E. 2d 221 (1967). See also, Stadiem v. Stadiem, 230 N.C. 318, 52 S.E. 2d 899 (1949).\u201d\nMoreover, since the findings were not sufficient to support an award of alimony pendente lite they are not sufficient to support an award of counsel fees. Newsome v. Newsome, 22 N.C. App. 651, 207 S.E. 2d 355 (1974).\nThe judgment is vacated and the cause is remanded for further hearing and findings consistent with this opinion.\nVacated and remanded.\nChief Judge Brock and Judge Parker concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "White and Grumpier, by Michael J. Lewis and J. Earl McMichael, for plaintiff appellee.",
      "John E. Gehring and Hatfield and Allman, by James W. Armentrout, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BETSY CHOPLIN HAMPTON v. RONALD GRANT HAMPTON\nNo. 7521DC826\n(Filed 5 May 1976)\nDivorce and Alimony \u00a7\u00a7 18, 23, 24\u2014 alimony pendente lite \u2014 child custody and support \u2014 insufficiency of findings\nIn an action for alimony without divorce, alimony pendente lite, child custody and child support, the trial court erred in failing to make any findings with respect to whether defendant was capable of making alimony pendente lite payments, whether plaintiff was entitled to the relief demanded, what the reasonable needs of the minor children were, what the best interests and welfare of the children required with respect to custody, and whether plaintiff was entitled to counsel fees.\nAppeal by defendant from Clifford, Judge. Judgment entered 25 April 1975 in District Court, Forsyth County. Heard in the Court of Appeals 11 February 1976.\nPlaintiff (wife) instituted this action against the defendant (husband) to obtain alimony without divorce, alimony pendente lite, custody of the parties\u2019 two minor children, and child support payments. Plaintiff alleged in her complaint that the defendant has abandoned her and the parties\u2019 two minor children. Plaintiff further alleged that the defendant engaged in homosexual conduct and offered plaintiff such indignities so as to render her life burdensome and her condition intolerable.\nDefendant answered and specifically denied that he had abandoned the plaintiff, that he was a homosexual, and that he had offered such indignities to the plaintiff as to render her life burdensome and intolerable. Defendant counterclaimed for custody of the children.\nThe court found that plaintiff was unemployed and that she could not find work; that \u201ctwo children were born to this marriage\u201d; that defendant abandoned plaintiff and the children; and the court further made findings related to defendant\u2019s income. The court concluded that plaintiff was a dependent spouse. Custody of the children was awarded to the plaintiff, and defendant was ordered to make alimony payments of $50 per week, child support payments of $50 per week, and a payment of $200 for plaintiff\u2019s counsel fees. The order further provided for an increase in alimony and support payments when defendant resumed regular working hours.\nFrom the order, dated 25 April 1975, defendant appealed to this Court.\nWhite and Grumpier, by Michael J. Lewis and J. Earl McMichael, for plaintiff appellee.\nJohn E. Gehring and Hatfield and Allman, by James W. Armentrout, for defendant appellant."
  },
  "file_name": "0342-01",
  "first_page_order": 374,
  "last_page_order": 377
}