#### HOMER C. HOLLOWAY v. NINA NEIGHBORS HOLLOWAY.

(Filed 4 January, 1939.)

1. Divorce § 11 — Right to alimony pendente lite in action under O. S., 1666.

On a motion for alimony pendente lite and for counsel fees in an action instituted by a wife against her husband under C. S., 1666, or in her cross action in a suit instituted by her husband, whether she is entitled to alimony is a question of law upon the facts found, and the court must find the facts upon request.

£5. Same — Right to alimony pendente lite in action under C. S., 1667.

On motion for alimony pendente lite and counsel fees made in an action instituted by the wife against her husband under O. S., 1667, the judge is not required to find the facts as a basis for an award of alimony unless the adultery of the wife is pleaded in bar, though the better practice is to do so.

3. Same — Right to alimony pendente lite under the common law.

In an actipn for divorce instituted by the husband, the wife is entitled to an allowance for support pendente lite and counsel fees on her motion therefor under the' common law without setting up a cross action, which right is given her as a matter of justice to enable her to defend her name and marital rights, and her right to such allowance will not be denied unless she answers and defends in bad faith.

4. Same — Finding held sufficient to support allowance of temporary subsistence under the common law.

A finding that the wife has denied under oath thp charge of adultery against her in the complaint in her husband’s action for divorce, and that such denial is made in good faith; that the wife is unable financially to properly defend the action; and that the husband is financially able, is held sufficient to support an allowance of temporary support, expense money and counsel fees to the wife under the common law.

5. Same — On motion for allowance under common law, court must hear evidence of husband on question of good faith of wife’s defense.

On this motion for allowance to the wife for temporary support and counsel fees under the common law in the husband’s action for divorce, the court found that the wife’s denial of the charge of adultery was made in good faith and that she was financially unable to properly defend the action, and granted her motion, and refused to hear affidavits offered by the husband for the purpose of showing that she was guilty of adulterous conduct. Held: The husband’s evidence related directly upon the question of good faith, and it was error for the court to enter the order without hearing and considering such evidence.

Appeal by plaintiff from Williams, J., in Chambers, 1 April, 1938. From OeaNGB.

Error.

*663Tbis is an action for divorce instituted by tbe plaintiff against' the defendant on the grounds of adultery.

The plaintiff makes the necessary allegations of marriage and residence and alleges acts of adultery on the part of the defendant. The defendant, answering, denies the allegation of adultery, and alleges that notwithstanding the plaintiff had knowledge of the facts upon which he bases his allegation that the defendant committed adultery in July or August, 1936, he continued thereafter to live with the defendant, thereby condoning any alleged misconduct on the part of the defendant. The defendant further in her answer prays that she be allowed alimony pendente lite and reasonable counsel fees. Notice was served on the plaintiff to appear before "Williams, J., and show cause why alimony pendente lite and counsel fees prayed in the answer should not be allowed.

The motion came on to be heard before Williams, J., in chambers in Durham, N. 0., at which time the plaintiff submitted a number of affidavits which he contends establish the alleged adultery of the defendant. The court found “that the defendant had denied under oath the adultery charged against her in the complaint; that such, her denial, is made in good faith; that the court declines to hear and pass upon affidavits as to the truth or falsity of the charge of adultery; that defendant is unable financially to employ counsel to bring to the court the witnesses necessary for her proper defense and properly defend this action; that plaintiff, her husband, is solvent and amply able to pay, etc.” Thereupon, judgment was entered allowing alimony pendente lite and counsel fees. Plaintiff excepted and appealed.

Graham & Eslcridge and L. J. Phipps for plaintiff, appellant.

Wm. H. Murdoch for defendant, appellee.

BaeNHILL, J.

'In determining the question presented on this appeal

it may be well to briefly review the instances in which a wife is entitled to alimony pendente lite and counsel fees and the law in respect thereto : (1) On a motion for alimony pendente lite and counsel fees in an action instituted by a wife against her husband under the provisions of C. S., 1666, whether the wife is entitled to alimony is a question of law upon the facts found, and the court below must find the facts, upon request. Moore v. Moore, 130 N. C., 333, 41 S. E., 943; McManus v. McManus, 191 N. C., 740, 133 S. E., 9; Caudle v. Caudle, 206 N. C., 484, 174 S. E., 304. The wife is entitled to an allowance on proper showing when she, as defendant, sets up a cross action in a suit instituted by the husband. Webber v. Webber, 79 N. C., 572. (2) On motion for alimony pendente lite and counsel fees made in an action instituted by *664tbe wife against ber busband under provisions of C. S., 1667, tbe judge is not required to find tbe facts as a basis for an award of alimony unless tbe adultery of tbe wife is pleaded in bar, tbougb tbe better practice would be to do so. Price v. Price, 188 N. C., 640, 125 S. E., 264, and cases there cited. Tbis section as first enacted, cb. 193, Public Laws 1872, made no provision for alimony pendente lite. Tbis provision was made by amendment to tbe act by cb. 24, Public Laws 1919. It was further amended in 1923 to allow tbe busband to plead tbe adultery of tbe wife in bar of ber right to alimony by cb. 52, Public Laws 1923. (3) On motion for alimony pendente lite and counsel fees by tbe wife, defendant in an action for divorce instituted by tbe busband, tbe wife, without setting up a cross action, is entitled to an allowance for support pendente lite and counsel fees under tbe common law. It was first held in Reeves v. Reeves, 82 N. C., 348, that when tbe wife as defendant did not set up any cross action in ber answer she is not entitled to tbis relief. Tbis decision was based upon tbe theory that tbe Act of 1852, making provision for alimony pendente lite, repealed tbe common law. Tbis decision was expressly overruled in Medlin v. Medlin, 175 N. C., 529, 95 S. E., 857. Quoting from Bishop on Marriage and Divorce, sec. 976, it is there said: “Natural justice and tbe policy of tbe law alike demand that in any litigation between tbe busband and tbe wife they shall have equal facilities for presenting their case before tbe tribunal. Tbis requires that they shall have equal command of funds, so that if she is without means, tbe law having tested tbe acquisitions of tbe two in him, be shall be compelled to furnish them to ber to an extent rendering ber bis equal in tbe suit. Tbis doctrine is a part of tbe same whence proceeds temporary alimony. And so tbe English courts have from tbe earliest times to tbe present held without tbe aid of an act of Parliament, and nearly all of our own have accepted tbe doctrine as of common law.”

In tbis latter type of suit a finding “that defendant has denied, under oath, tbe adultery charge against her in tbe complaint; that such (ber denial) is made in good faith; that defendant is unable financially to employ counsel or to bring to tbe court tbe witnesses necessary for her proper defense; that plaintiff, ber busband, is solvent and amply able to pay, etc.,” is a sufficient finding to support tbe allowance of temporary support, expense money and counsel fees. Medlin v. Medlin, supra.

Following tbe decision in Medlin v. Medlin, supra, tbis Court proceeds upon tbe theory that it would be manifestly unfair to permit a busband to maintain an action which might well stigmatize bis wife with foul imputation or deprive ber of ber marital rights without at tbe same time requiring him to furnish tbe necessary funds to enable ber to so defend tbe action as to bring about a fair investigation of tbe charges *665and a just determination of tbe issues. Unless be does so tbe court will withhold its aid from him. Unless she answers and defends in bad faith she will not be deprived of tbe support due her from her husband until a jury has determined tbe issues adversely to her in a trial in which she has had a fair opportunity, and reasonable means with which, to defend herself.

The defendant’s motion comes within the third class of eases above enumerated. The findings of the judge, under the decisions, are amply sufficient to sustain the order. The vice in the order rests in the fact that in determining that the wife answered in good faith the court refused to hear or consider evidence offered by the plaintiff. The affidavits tendered by the plaintiff were offered for the purpose of showing that the defendant was guilty of adulterous conduct. This evidence directly bears upon the question of good faith and should have been heard and considered by the court. 'While the court might well hesitate to find the issue of adultery against the wife without the aid of a jury and thus deprive her of her common law right to support except upon clear and convincing evidence, it should nevertheless consider any evidence bearing on the question of good faith tendered by the plaintiff and determine the question of good faith only after a full and fair consideration of the evidence offered.

It was error for the court below to decline to consider the evidence tendered by the plaintiff. This entitles the plaintiff to a rehearing upon the motion.

Error.