#### MOORE v. MOORE.

(Filed June 17, 1902.)

1. DIVORCE — Alimony Pendente Lite — Notice—Tenue.

A motion for alimony pendente iite may be beard anywhere in tbe judicial district, five days’ notice being required when heard out of term time.

2. DIVORCE — Affidavit—Amendment.

It is discretionary with the trial judge to allow an amendment to the affidavit in an action for divorce.

3. DIVORCE — Residence—Domicile—Husband and Wife.

Where husband and wife establish a residence in the State, the wife, by leaving the State for a temporary purpose, without any intention of changing her residence, does not thereby lose her citizenship.

4. DIVORCE — Alimony—Appeal—Review—Questions for Court.

Whether the wife is entitled to alimony is a question of law upon the facts found and is reviewable upon appeal by either party. .

5. DIVORCE — Alimony—Amount■—Discretion.

The amount of alimony in an action for divorce is discretionary with the trial judge.

6. DIVORCE — Alimony—Allowance—When.

Alimony pendente lite may be allowed before the return term if the complaint' has been filed.

Montgomery, J., dissenting.

ActioN by J. Gr. Moore against J. H. Moore, beard by Judge W. B. Council, at LeNOIr, N. G, on December 25, 1901. ' Erom a decree allowing alimony 'pendente lite, tbe defendant appealed.

Long & Nicholson, for tbe plaintiff.

Armfield & Turner, and A. C. McIntosh, for tbe defendant.

*334CLARK, J.

Prior to tbe Statute of 1852, alimony pendente . lite was unknown in tbis State. Wilson v. Wilson, 19 N. C., 377; Earp v. Earp, 54 N. C., 118. Its evident purpose was “to afford tbe wife present pecuniary relief pending tbe progress of tbe action.” Morris v. Morris, 89 N. C., 109. 'Tbe present-statute (Tbe Code, Sec. 1291) provides tbat tbe motion may be beard and determined in or out of term, and certainly tbe wife in sucb case ought not to be left to starve till tbe Judge, or bis successor, shall come to tbe county. Tbe motion is ancillary and not a motion for judgment on tbe merits, or a motion in tbe cause, strictly speaking, and bence it can be beard anywhere in tbe district. Parker v. McPhail, 112 N. C., 502; Fertilizer Co. v. Taylor, Ibid, 141; Ledbetter v. Pinner, 120 N. C., 455. Tbe five days’ notice is required only when tbe motion is beard out of term (Zimmerman v. Zimmerman, 113 N. C., 432), and it was duly given in tbis case. Tbe parties being in Court by the' notice, tbe continuance of tbe motion did not make necessary a renewal of tbe notice.

Tbe language of tbe affidavit annexed to the complaint tbat “’the complainant became a resident of tbis State more than ?two years next preceding tbis cause of action, with her husband, at Liledown, in October, 1898, and she is advised tbat her legal residence has* been there since said time,” is a sub- : stantial compliance with tbe. statute. But to avoid any controversy, tbe petitioner asked leave and amended tbe above to conform literally to tbe statute, to-wit, “tbe complainant has been a resident of tbe State for two years next preceding tbe filing of tbe complaint.” Tbe amendment was in tbe discrettion of tbe Court. Clark’s Code (3d Ed.), Sec. 273, and cases there cited.

Tbe principal contention of tbe defendant, however, is that the residence of tbe complainant, tbe wife, must be an actual one, in tbe sense tbat she must be physically present in tbe *335State continuously for two- yearsl in order to confer jurisdiction, and, as such, is not the case here, the decree and proceedings are void. The defendant resides here and has been personally served with summons, but it is contended that the wife is not qualified to sue in oux Courts for above reasons. But if she could not sue here, where could she sue ? She could not sue elsewhere, because she could not get personal service on her husband. Harris v. Harris, 115 N. C., 587, 44 Am. St. Rep., 471. This is in effect held in Arrington v. Arrington, 102 N. C., 491, and Harris v. Harris, supra, where the wife left this State and resided in another State and brought suit there, and this Court held the decree valid only because the husband had voluntarily entered an appearance in such action. Besides, she avers, and the Court finds as a fact, that she has not acquired residence elsewhere and had no intention to abandon the residence she had acquired here.

In Smith v. Morehead, 59 N. C., 360, the Court held, what is the general rule, that “the domicile of the husband draws to it the domicile of the wife.” The defendant relies upon Schonwald v. Schonwald, 55 N. C., 367. But that case was an exceptional one in that the wife had never been a resident of this State, but, retaining the residence she had, came into this State after her husband had been residing here for eight years, and, without acquiring residence here, began her action. In the case at bar, the plaintiff came here in 1898 with her husband, and acquired residence, and in 1899 left for another State for a temporary purpose without intention of changing the residence acquired here, and, returning here, was disavowed by her husband, and brings this action more than two years after her residence had begun here.

The Judge finds the following facts: “The plaintiff had been a resident of North Carolina for more than two years next preceding the filing of her complaint; that her residence began with her husband at Liledowm, N. C., in the Fall of *3361898, at which place the appellant has since permanently resided ; that ini going to California under protest, and at the instance of her husband, the plaintiff never intended toi make that State her residence, nor to sever her residence from that of her husband; that the plaintiff’s residence has always been that of her husband.” Thus-, the residence of the plaintiff for the required period is not only averred in the complaint and affidavit affixed thereto', hut is found as a fact by the Court below upon the evidence, and we are bound by such finding of fact for the purposes of this appeal.

Alimony pendente lite was first allowed, as already said, in this State, by Chapter 53, Laws 1852. Thereafter, in Earp v. Earp, 54 N. C., 118, the Court held that an appeal would not lie from such interlocutory decree granting alimony, upon the ground that it would defeat the purpose for which the statute was enacted. But in Taylor v. Taylor, 46 N. C., 528, it was held that an appeal would lie from a refusal to grant alimony pendente lite. Revised Code, Chap. 39, Sec. 15, amended the statute to' allow an' appeal from granting or refusing the allowance. The present statute is Section 1291 of The Code, which provides that the complainant must set forth such facts as, when found to be true by the Judge, shall entitle her to the relief.

Whether the wife is entitled to alimony is a question of law upon the facts found, and that is reviewable on appeal by either party. The Court below must find the facts. “In his findings of fact, the Judge is not confined to the sworn complaint. He may be aided by affidavits offered on the part of the plaintiff and the defendant.” Morris v. Morris, 89 N. C., 109. We can not look into the affidavits.

As to the amount of alimony to' be allowed, the statute says: “The Judge may order the husband to pay her such alimony during, the pendency of the suit as shall appear to him just and proper, having regard to the circumstances of the parties.” *337This makes tbe amount discretionary, and not reviewable on appeal unless there has been an abuse of discretion. Miller v. Miller, 33 Fla., 453, 24 L. R. A., 137; 1 Am. and Eng. Enc., 476, 477. In this case, it is found as facts upon tbe testimony'that tbe appellant is worth $80,000' to $100,000; that tbe reasonable income of bis property is from $8,000 to $10,000 per year; that tbe plaintiff is absolutely without means of subsistence and unable to meet tbe expenses of her suit. Tbe litigation requires, and will require doubtless, from tbe tenor of tbe affidavits, attorneys and other expenses not only here, but in Kentucky, Ohio, Indiana and California, to prepare her case. Still, an allowance of $4,000 seems to us a large one to be made before the jury has passed! upon tbe issues, at tbe trial of which it may possibly be found that tbe plaintiff is not entitled to any relief. If those issues shall be found in her favor, then tbe Court below could act with greater freedom. We can not say, however^ that tbe amount adjudged by bis Honor was so' gross as to be an abuse of tbe discretion reposed in him by tbe statute. As tbe statute provides “such order may be modified or vacated at any time on the application of either party, or of any one interested,” tbe defendant has still bis remedy by application to tbe proper Judge, who may affirm tbe present allowance or modify it, as to him “shall appear just and proper,” but tbe judgment, if modification is refused, would not be ap-pealable, as we have just held tbe allowance is not reviewable on appeal, unless when an abuse of discretion is shown, and besides such course would prevent any settlement of this preliminary matter by' successive appeals intervening.

After complaint filed, there was no reason why, upon notice, tbe motion should not be made for alimony pendente lite before tbe return term. Tbe urgency of plaintiff’s needs *338for subsistence and for means to prepare ber case may have required it.

Upon consideration of all the exceptions, we find

No Error.

Montgomery, J.,

dissenting.

This Court said in Nichols v. Nichols, 128 N. C., 108: “It is necessary, in order that the Courts may take jurisdiction of the matter of divorce, that each and all of the requisites mentioned in the affidavit required by The Code, Sec. 1287, shall be set out and sworn to by the plaintiff.” The requirements are mandatory. The matter of divorce not only affects the parties immediately concerned, but the whole fabric of our social life; and the Courts, before they will act, must see that a strict case is before them to be heard, and that can not be seen under our statute unless all the matters required by Section 1287 of The Code are set out in the affidavit accompanying the complaint, as well as that the complaint should set out a good cause of action.” That part of the affidavit of the plaintiff in this case •concerning the plaintiff’s residence does not comply with our statute.. The language of the statute is: “And that complainant has been a resident of the State for two years next preceding the filing of the complaint.” That requirement is set out in plain words, and any confusion of its terms by the use of technical and complex phraseology ought to' be regarded by the Courts as an effort on the part of the pleader to allege residence by construction. That part of the affidavit in this case is as follows: “That the complainant became a resident more than two years next preceding this cause of action (italics mine), with her husband, at Liledown, in October, 1898, and she is advised that her legal residence has been there since that time.” That she became a resident of this State with her husband in October, 1898, and that she was a resident more than two years next preceding the cause of *339actiondoes not mean necessarily that she was a resident two years before the complaint was filed. She may have left the State after 1898 with the intention and purpose never to' return, and have remained an actual resident of another State until a time: within two years before the complaint was filed; and that is precisely what was affirmed in some of the papers and affidavits filed by the defendant on the motion for alimony. If it should turn out upon the trial of the action that such was the case, it was most prudent in the counsel who drew the affidavit that he prepared it so as to aver a legal conclusion as to affiant’s residence, instead of a direct affirmation that she had been a resident in fact for two years next preceding the filing of the complaint. There must ’ have been an actual residence in this State for two years next preceding the filing of the complaint before an action for divorce can be commenced. And by that is not meant that the plaintiff should have actually “had her physical body in this State for two years in order to confer jurisdiction upon the Courts in this State”- (in the brief of plaintiff’s counsel), but that she should have had her recognized domicile here, with the present intention to remain. The domicile of the husband is not for every purpose the domicile of the wife. The maxim that the domicile of the wife follows that of the husband can not be applied to oust the Court of its jurisdiction; neither, from parity of reason, can it give jurisdiction. Schonwald v. Schonwald, 55 N. C., 367. It is said in the brief of plaintiff’s attorneys that in Smith v. Morehead, 59 N. C., 360, this Court held that “the- domicile of the husband draws to it the domicile of the wife,” and the case of Schonwald v. Schonwald was cited in Smith v. Morehead “in support of that doctrine.” It is true that in Smith v. Morehead the Court cited the Schonwald case and approved of the reason given in that case for the enactment of the law concerning residence in divorce proceedings, which reason was as fol*340lows: “Tbe principal reason of tbe enactment was to prevent our Courts from being made tbe easy instruments for obtaining divorces by persons not residing in tbe State — to prevent citizens of other States from using our Courts for tbe purposes tbey could not attain in tbeir own; in other words, to prevent frauds in these matters.” That is, that non-residents of tbe State could not procure valid divorces in tbeir own State from a resident of this State without acquiring jurisdiction of tbe defendant by a personal service in tbe State of tbe non-resident; and therefore it is deemed fraudulent to allow non-residents of tbe State to' use' our Courts for tbeir convenience and to procure decrees that tbey could not have in tbe Courts of tbeir own State.”

In Schonwald’s case it was affirmed in tbe affidavit of tbe petitioner that “her husband has resided in Wilmington for more than eight years, and although she has, not been living with him three years, in all, in this State, yet she is advised that tbe domicile of her husband is her domicile, and therefore she has been a resident of this State for more than tbe last three years preceding tbe present time.” Tbe Court said there: “Tbe counsel who drew tbe petition was well apprised of tbe difficulty in tbe way of bis client, and therefore, instead of recklessly making her swear to a fact, has made her aver a conclusion which does not necessarily follow tbe fact.” There can be no difference between a plaintiff, in an action for a divorce, who has never resided in tbe State, and a plaintiff in such a suit who once resided here, but who bad left tbe State with tbe determination never to return, and who, upon returning, has not resided within tbe State for two years next preceding tbe filing of tbe complaint. It is a mistake to say that in Smith v. Morehead, supra, this Court said “that tbe domicile of tbe husband draws to' it the domicile of the wife,” in tbe sense that that declaration bad reference to non-resident wives. Tbe bill in equity in that case *341showed that the complainant was, and always bad been, a resident of Wake County, and that the defendant was a resident of Guilford County. The bill was filed in Wake County. Upon a demurrer to the bill for want of jurisdiction in the Court of Equity for the county of .Wake, the demurrer was sustained — the Court holding that as both plaintiff and defendant were residents of the State, the complainant, upon her marriage with the defendant, became a resident of Guil-ford County, the county in which her husband resided. The Court was only stating the general rule when it said in Smith v. Morehead, supra, that “the domicile of the husband draws to it the domicile of the wife,” for the Court further said there: “It was undoubtedly competent for the Legislature tc enact that the actual residence of the wife, out of the State, should not be considered as a legal residence with her husband, in the State, for the purpose of enabling her to sue him in the Courts of this State. That was the intent of th§ Legislature in the act to which reference is made, and the effect of the decision in Schonwald’s case is to' carry out that intent. In other respects, the rule remains unchanged, and where the parties reside in the State the residence of the husband still remains the residence of the wife.”

The amendment to the affidavit ought not to have been allowed. It was in the very words of the statute, but it did not show jurisdiction. It conferred jurisdiction, and that was not permissible. Gilliam v. Ins. Co., 121 N. C., 369.

My conclusion is that the Court had no jurisdiction of the action, because of the defective affidavit in the respect I have pointed out.