#### PEARL ALLEN v. J. N. ALLEN.

(Filed 1 December, 1920.)

1. Divorce — Marriage— Alimony— “Subsistence” — Statutes— Attorney’s Fees.

Ob. 24, Laws of 1919, amending sec. 1567 of tbe Revisal, in reference to alimony or support, provides, in tbe sound discretion of tbe court, for an order for tbe necessary “subsistence” of tbe wife pendente lite, and supersedes tbe allowance for alimony, wbicb latter included an allowance for attorney’s fees, and under tbe amendment an allowance for attorney’s fees is not permissible. . ,

2. Divorce — Marriage—‘‘Subsistence’’—Alimony—Defenses—Statutes.

Under tbe provisions of cb. 24, Laws of 1919, amending sec. 1567 of tbe Revisal, it is immaterial wbat counter charges tbe defendant makes against tbe plaintiff, bis wife, in ber application, for ber necessary “subsistence” pendente lite, for if be bas separated from ber, be must support ber according to bis means and condition in life, taking into consideration tbe separate estate of bis wife, until tbe issue bas been submitted to tbe jury.

Clark, O. J., concurring in part; Allen, J., dissenting; Walker, J., com curring in tbe dissenting opinion. .

Appeal by defendant from order of Bay, J., on 10 May, 1920, from BoCKINGHAM.

This is a proceeding commenced under cb. 24 of tbe Public Laws of 1919, amendatory of sec. 1567 of tbe Eevisal, for tbe purpose of securing to tbe plaintiff subsistence for berself and children, together with counsel fees. From an order allowing subsistence and counsel fees, made by bis Honor, Judge Bay, in the- Superior Court of Boekingham County, tbe defendant appeals.

J. M. Sharp and P. W. Glidewell for plaintiff.

J. 0. Brown and G. 0. McMichael for defendant.

BeowN, J.

Tbe judge made an allowance to tbe plaintiff for subsistence of $200 on 1 April, 1920, upon due notice. No exception was taken to this allowance, and it was paid in full by tbe defendant. Tbe case was then continued for further bearing until 11 May, 1920, to be beard at tbe courthouse in Wentworth. At that time an allowance was made to the • plaintiff of $75 for berself and children, together with $250 attorneys’ fees in addition. In bis first order tbe judge finds as a fact: “That tbe defendant bas-left tbe plaintiff, and bas taken from ber without legal process tbe four older children, and bas failed and refused to support' tbe said plaintiff, and bas refused to let ber see tbe said four children, and- bas taken under claim and delivery all tbe household and *466kitchen furniture and provisions, and bas locked them up; and it further appearing to the court that the baby, two years old, is still with the plaintiff, and that the defendant is trying to, without legal process, take that child from the plaintiff.”

Upon this finding we are of opinion that the plaintiff is entitled to an allowance for necessary subsistence pending the action and until the issues can be determined by a jury. In our judgment it is immaterial what counter charges the defendant makes against the plaintiff. If he has separated from her, he must support her according to his means and condition in life, taking' into consideration the separate estate of the wife, until the issues can be determined by a jury. The sum allowed for subsistence must be left to the sound discretion of the Superior Court judge, and there is no evidence of an abuse of such discretion in this case.

The act of 1919 is plainly intended to supersede the statute heretofore regulating alimony pendente lite, and consequently all the decisions bearing thereon are of no value. The Legislature has carefully avoided the use of the word “alimony” anywhere in the statute. Counsel fees have heretofore been allowed as comprehended under the term alimony because they were necessary in order to enable the wife to prosecute her action. But in this statute the word subsistence is used and the word alimony omitted, and there is no provision whatever that we can find .authorizing the allowance of counsel fees in a proceeding brought under .the statute.

We are of opinion that the order allowing subsistence should be .affirmed, and that the order allowing coimsel fees should be reversed.

Modified and affirmed.

Clark, C. J.,

concurring in part: There are but two assignments of error. The first is that the court allowed alimony pendente lite in a proceeding under Rev., 1567, authorizing “actions for alimony without divorce.” There had been decisions of this Court that alimony pendente lite was not authorized in actions brought under that section, but was allowable only in actions brought under Rev., 1566, in actions for divorce. But to cure this defect, ch. 24, Laws 1919, expressly provides that in actions like this under Rev., 1567 for “alimony without divorce,” alimony pendente lite could be allowed in the discretion of the court. This chapter must have escaped the attention of the appellant’s counsel.

The only other assignment of error is that the judge “signed the order” for which no grounds are given, neither in the exception itself nor in the assignment of error, and therefore it is invalid.

There is an exception urged, however, that the judge did not find the facts upon which he based his order. The fact of abandonment is, however, expressly found, and that of marriage is admitted, which are *467tbe two facts required, to be found as tbe basis for an allowance pendente lite under Rev., 1566. Skittletharpe v. Skittletharpe, 130 N. C., 72, and Bidwell v. Bidwell, 139 N. C., 402. Besides, under tbe language in Rev., 1567, tbe.judge is not required to “find tbe facts” as be is required to do under proceedings in 1566 by tbe language thereof.

Tbe recriminatory allegations in tbe answer are not to be considered in a motion of alimony pendente lite when there has been a marriage and abandonment, as is well stated by Hoke, J., in Medlin v. Medlin, 175 N. C., 530; Skittletharpe v. Skittletharpe, and Bidwell v. Bidwell, supra.

Up to cb. 53, Laws 1852, alimony pendente lite was not allowed in actions for divorce, Earp v. Earp, 54 N. C., 119. But tbe humanity of that day revolted at this injustice, and authorized such an allowance, in tbe discretion of tbe court.

Tbe Laws 1872, cb. 193, authorized tbe wife to sue for alimony, without asking for divorce. Cram v. Cram, 116 N. C., 288. It was subsequently ascertained that this latter act inadvertently failed to authorize tbe allowance of alimony pendente lite in that proceeding, and this defect was cured by tbe enactment of cb. 24, Laws 1919.

Tbe above is tbe history of “alimony pendente lite” in this State. But it must be noted that “counsel fees and suit money” were allowed as costs before, and are not derived from tbe allowance of alimony, which word comes from tbe Latin alimentum, and means simply an allowance for subsistence, and is statutory.

Counsel fees and suit money have been allowed from time immemorial, and do not come under any provision for alimony, 19 C. J., 226, 227, and notes; and tbe power to make such allowance exists irrespective of statutory authority. 19 C. J., 228; 21 Cyc., 1604, and cases there cited. Such an allowance rests upon tbe principle that in every action between tbe husband and wife, tbe husband is liable for “costs” in any event, and tbe wife is allowed counsel fees and suit money for costs “to enable her to bring her case in court,” without which tbe right to bring an action against her husband would be illusory and a mockery. 1 R. C. L., 909-912. Tbe amount of such allowance has always rested in tbe discretion of tbe court, and cannot be reviewed “unless there is clearly an abuse of discretion.” Tbe amount of alimony is also discretionary with tbe trial judge unless there is a gross abuse of discretion. Tbe whole subject is reviewed, with tbe citations of our authorities, in Moore v. Moore, 130 N. C., 333, also see citations to that case in Anno. Ed., and Jones v. Jones, 173 N. C., 285, and cases there cited.

A wife, engaged in household duties, bearing and rearing children, and being often tbe cook for tbe family also, receives no wages and has no opportunity for gainful occupation, and hence it is elemental justice *468tbat- sbe be allowed a reasonable sum for counsel fees and court costs-to enable ber “to present ber’ side in court,” wbicb bas always been allowed by tbe courts, and also tbe statute now provides alimony pendente lite wben sbe bas not sufficient property of ber own so tbat sbe may not starve while baying tbe merits of ber alleged wrongs investigated by a judge and jury;

Especially should sbe be so allowed, wben, as tbe judge found as facts' in this case, tbe husband bas stripped ber of a borne, locked up tbe provisions, household and kitchen furniture, and by bis recriminatory charges seeks to blast tbe character utterly of tbe mother of bis six children. Whether bis charges are true or not, only a jury can decide, and sbe should have a “square deal” to defend herself by an allowance for counsel fees.and subsistence till tbe facts are determined. This is. what the acts of 1852 and 1919, supra, now C. S., 1666, 1667, provide.

AlleN, . J.,

dissenting: This is an action by tbe wife against tbe husband for support without divorce, brought under sec. 1567 of tbe Revisal, as amended by cb. 24 of tbe Laws of 1919.

After tbe action was commenced tbe plaintiff moved upon notice for an. order' for support and counsel fees, wbicb motion was supported by tbe affidavit of tbe plaintiff alleging various acts of cruelty and mistreatment, failure of support by the defendant, and abandonment.

■ At tbe time wben tbe motion was returnable tbe defendant was not able to be present, and upon request tbe motion was continued to a future date, tbe judge requiring tbe defendant to pay $200 to the-plaintiff, wbicb was done, and in this order there are certain recitals wbicb will be hereafter referred to.

. Afterwards tbe husband appeared and filed an affidavit in wbicb be denied all of tbe material allegations in tbe affidavit of tbe plaintiff, and particularly tbat be bad separated himself from bis wife, and on tbe contrary alleged tbat sbe bad abandoned ber borne.

He also alleged tbat tbe plaintiff bad been cruel and abusive in ber treatment .of. him, tbat sbe bad refused to attend to tbe duties of tbe borne and tbat sbe was guilty of acts of infidelity. He also introduced supporting affidavits from a number of citizens showing tbat be bad been, kind and considerate, tbat be was a man of good character, and tbat tbe plaintiff was a woman .of bad character, tbat be bad provided for bis wife and .children, ,and tbat sbe bad abandoned him.

.There.were also six affidavits supporting tbe charge of infidelity.

Tbe plaintiff introduced five affidavits as to ber good character, but., all of - them except.one referred to ber .character when sbe was a young woman. -. .-

Upon ;tbe‘ bearing bis Honor made .'the following' order

> *469“This cause coming on to be beard before bis Honor, J. Bis Ray, judge presiding, iltb Judicial District, and being beard upon allegations of tbe complaint, answer, and affidavits, and after árgument of counsel tbe court finds as a fact tbat upon tbe allegations of tbe complaint, and tbe proof tbe plaintiff would be entitled to a divorce from bed and board, and ■is entitled to alimony pendente Hie and attorney’s fees; it is therefore ordered tbat tbe defendant secure to tbe plaintiff $75 as alimony until further order of tbe court, and $250 attorney’s fees, in addition to tbe alimony herein allowed. This T7 May, 1920. J. Bis Rat,

> Judge Presiding ’’

Tbe defendant excepted and appealed.

In actions for divorce from tbe bonds of matrimony or from bed and board, if the wife “shall set forth in her complaint such facts, which .upon application for alimony shall be found by tbe judge to be true and to entitle her to tbe relief demanded in tbe complaint, and it shall appear to tbe judge of such court, either in or out of term, by the affidavit of tbe complaint, or other proof, tbat she has not sufficient means whereof to subsist during the prosecution of the suit, and to defray the necessary and proper expenses thereof, the judge may order tbe 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.” Rev., 1566.

“The judge must find the essential and issuable facts, and set them out in detail so tbat bis court can determine from the facts as found whether tbe order for alimony can be upheld as tbe correct legal conclusion. . . . These findings, and the order predicated thereon, are not finally ^conclusive on the parties nor receivable in evidence on. tbe trial of tbe issues before tbe jury, unless modified on further notice and hearing, they are conclusive for tbe purposes of tbe motion, and operating as they do presently to deprive a defendant of bis property, they should be decided and set out in conclusive form and in such detail that tbe appellate court, as stated, may be able to determine whether they ■justify the order made.” Easeley v. Easeley, 173 N. C., 531.

It was held in the Baseley case tbat a finding by the judge that the “plaintiff bad made out a prima facie case on tbe issue of abandonment” was insufficient to support an order for alimony, and tbat the judge ■must “find and set out tbe relevant facts.” The finding in this case that “upon tbe allegations of the complaint and the proof tbe plaintiff would be entitled to a divorce from bed and board” is not more specific than tbe one condemned in tbe Easeley case.

If, however, the action was for support alone, and not for divorce (Rev., 1567), which is the action now before us, no order for alimony *470 pendente lite could be made prior to cb. 24, Laws of 1919. Hodges v. Hodges, 82 N. C., 122, approved in Crews v. Crews, 175 N. C., 171.

In the latter action the only issuable facts were: “(1) As to whether the marriage relation existed at the time of the institution of the proceeding; (2) whether the husband separated himself from his wife,” and the reasons and excuses of the husband for the separation were irrelevant, the Court holding that the husband could not defeat the action for support by proof of the infidelity of the wife, but must wait and seek his remedy in an action for divorce, when, if successful, he would be relieved of the order for support, which was not final.

If the marriage and separation of the husband were admitted, the judge made the order for support after hearing both parties, but if either was denied, no order could be made until the controverted fact was settled by a jury. These principles are discussed and settled in Skittletharpe v. Skittletharpe, 130 N. C., 72; Hooper v. Hooper, 164 N. C., 2; Crews v. Crews, 175 N. C., 171.

In 1919 (ch. 24, Laws 1919) the statute permitting actions for support without divorce was changed very materially by substituting the following for sec. 1567 of the Revisal:

"If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if'he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court of the county in which the cause of action arose to have a reasonable subsistence allotted and paid or secured to her from the estate or earnings of her husband. Pending the trial and final determination of the issues involved in such action, and also after they are determined, if finally determined, in favor of the wife, such wife may make application to the resident judge of the Superior Court, or the judge holding the Superior Court of the district in which the action was brought, for an allowance for such subsistence, and it shall be lawful for such judge to cause the husband to secure so much of his estate, or to pay so much of his earnings, or both, as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the saparate estate of the wife: Provided, that no order for such allowance shall be made unless the husband shall have had five days notice thereof. Such application may be heard in or out of term, orally or upon affidavit, or either or both.” (Certain parts not material omitted.)

The statute does not change the issuable facts in actions for support, nor does it affect the principle that these must be passed on by a jury *471before a judgment can be rendered, but it does permit tbe judge to make an order for subsistence of tbe wife and children during tbe pendency of tbe action, thus conforming tbe procedure to applications for alimony pendente lite in actions for divorce, and, as on sucb applications, tbe material facts of marriage and separation by tbe husband must be found by tbe judge as a basis for bis order, wbicb findings are not conclusive on tbe parties nor receivable in evidence on tbe trial of tbe issues before tbe jury.

There is, however, a marked difference in tbe order, wbicb may be made in actions for divorce, and in those for support.

In tbe first, when tbe wife makes it appear “that she has not sufficient means whereon to subsist during tbe prosecution of tbe suit, and to defray tbe necessary and proper expenses thereof tbe judge may order tbe husband to pay her sucb alimony during tbe pendency of tbe suit,” etc., and sucb alimony includes counsel fees, but in tbe second under tbe act of 1919, tbe application is for an allowance for subsistence alone, without reference to tbe expenses of suit, alimony is not mentioned, and tbe order is for subsistence for tbe benefit of tbe wife and children.

When tbe act of 19Í9 was adopted, tbe General Assembly knew that in actions for divorce tbe wife must show that she did not have sufficient means to defray tbe expenses of suit, and that authority to order alimony included counsel fees. It was also known that in actions for support no order for subsistence or counsel fees could be made pendente lite, and, with a knowledge of these facts, having restricted tbe amendatory act to subsistence, we cannot extend its meaning to include tbe fees of an attorney, when tbe General Assembly has declined to do so.

Applying these principles, tbe order appealed from should, I think, be set aside, because it allows attorney’s fees in an action for support, wbicb is without authority of law, and there is no finding of fact, although tbe answer of tbe defendant denies that be has separated from tbe plaintiff, and, on tbe contrary, alleges that tbe plaintiff has willfully abandoned him, wbicb, if true, would not come within tbe meaning of tbe statute, wbicb allows an order to be made if tbe husband “shall separate himself from bis wife.”

It is true it is recited in a prior order that tbe defendant-bad left tbe plaintiff, wbicb might be sufficient, but tbe order from which tbe appeal is taken does not purport to be based on that order, wbicb was made before tbe answer was filed and before tbe defendant bad been beard on a motion for a continuance, “without prejudice to tbe rights of either party upon tbe final bearing,” and tbe recitals were for tbe purposes of tbe former order and should have no bearing on this appeal.

*472• As I understand tbe record, tbe material fact that tbe defendant has separated bimself from bis wife, wbicb means more than living apart, bas not been made, and without sucb finding no order for support or counsel fees should be sustained.

'Waliceb, J., concurs in tbis result.