{ "id": 8605933, "name": "MRS. CLARA HOWELL PHILLIPS v. JUSTIN E. PHILLIPS", "name_abbreviation": "Phillips v. Phillips", "decision_date": "1943-06-02", "docket_number": "", "first_page": "276", "last_page": "278", "citations": [ { "type": "official", "cite": "223 N.C. 276" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "125 S. E., 264", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N. C., 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654686 ], "opinion_index": 0, "case_paths": [ "/nc/188/0640-01" ] }, { "cite": "180 S. E., 665", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607560 ], "opinion_index": 0, "case_paths": [ "/nc/208/0392-01" ] }, { "cite": "104 N. C., 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651951 ], "opinion_index": 0, "case_paths": [ "/nc/104/0631-01" ] }, { "cite": "149 N. C., 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270498 ], "opinion_index": 0, "case_paths": [ "/nc/149/0321-01" ] }, { "cite": "36 Ga., 386", "category": "reporters:state", "reporter": "Ga.", "opinion_index": 0 }, { "cite": "171 Va., 244", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1952385 ], "opinion_index": 0, "case_paths": [ "/va/171/0244-01" ] }, { "cite": "119 S. E., 485", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653626 ], "opinion_index": 0, "case_paths": [ "/nc/186/0351-01" ] }, { "cite": "200 S. E., 436", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N. C., 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632524 ], "opinion_index": 0, "case_paths": [ "/nc/214/0662-01" ] }, { "cite": "216 N. C., 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598951 ], "opinion_index": 0, "case_paths": [ "/nc/216/0298-01" ] }, { "cite": "117 S. E., 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N. C., 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656010 ], "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/185/0332-01" ] } ], "analysis": { "cardinality": 420, "char_count": 6775, "ocr_confidence": 0.468, "pagerank": { "raw": 3.1405715960353433e-07, "percentile": 0.8620224576799651 }, "sha256": "397753c2f0f10f577030b90bb6619845ab19308975af102f80f35181db39282f", "simhash": "1:074688a18892e472", "word_count": 1191 }, "last_updated": "2023-07-14T18:13:50.990749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. CLARA HOWELL PHILLIPS v. JUSTIN E. PHILLIPS." ], "opinions": [ { "text": "Seawell, J.\n\"We do not understand that it is contended that subsistence and counsel fees pendente lite may not now be allowed under C. S., 1667, authorizing an action for alimony without divorce. The original Act of 1871-72 did not so provide; but successive amendments by ch. 24, Public Laws of 1919, and ch. 123, Public Laws of 1921, permitted an allowance of subsistence and of counsel fees pending the hearing on the\nissues. See history of this legislation per Adams, J., in Moore v. Moore, 185 N. C., 332, 335, 117 S. E., 12; Peele v. Peele, 216 N. C., 298, 4 S. E. (2d), 616; Holloway v. Holloway, 214 N. C., 662, 200 S. E., 436. The defendant merely contends that, as a matter of law, such allowances should not be made upon the facts of this case and on plaintiff\u2019s own showing.\nUnder C. S., 1667, although the plaintiff does not ask for divorce, she must charge and prove such injurious conduct on the part of the husband as would entitle her to a divorce a mensa et thoro, at least. She charged abandonment, failure to support, and adultery, which is sufficient to satisfy the statute.\nAlthough he had made no plea of condonement in his answer, the defendant undertook to set up this defense against plaintiff\u2019s motion for alimony and counsel fees pendente lite.\nIn Blakely v. Blakely, 186 N. C., 351, 119 S. E., 485, referring to the defense of'condonation, it is said: \u201cIt is very generally regarded as a specific affirmative defense to be alleged and proved by the party insisting upon it, and is not required to be negatived by the opposing pleader. White v. White, 171 Va., 244; Odom v. Odom, 36 Ga., 386; 9 R. C. L., 386. And decisions of our own Court, in Kinney v. Kinney, 149 N. C., 321; Steel v. Steel, 104 N. C., 631-638, and other cases, are in full approval of the general principle.\u201d\nWe see no reason why this rule of practice should not be enforced since the defense affects the plaintiff\u2019s case so importantly, and the rule is similar to that which obtains with respect to many other affirmative defenses which go to the defeat of the action. The defendant not having relied upon condonation in his answer should not be heard upon the point in resisting the motion for subsistence and suit money.\nThe defendant contends that the complaint and testimony of the wife fully establish that he had made adequate provision for her subsistence and that she has income out of this provision sufficient for suit money. But there are so many things to be taken into consideration upon such a question that it is difficult to conceive how it could ever become a matter of law, except upon an abuse of discretion by the trial judge, which does not appear in the case at bar. If there are such cases, they must be rare. In this connection it may be proper to note that the discretion given to t.he trial judge is so wide that he is not required to make formal findings of fact upon such a motion, unless the charge of adultery is made against the wife. Southard v. Southard, 208 N. C., 392, 180 S. E., 665; Price v. Price, 188 N. C., 640, 125 S. E., 264.\nOf course, the introduction of evidence and the finding of facts were for the sole purposes of the motion, and the facts found are not conclusive on the trial of the issues. Moore v. Moore, supra.\nWe conclude that no error is disclosed in defendant\u2019s appeal, and the order is\nAffirmed.", "type": "majority", "author": "Seawell, J." } ], "attorneys": [ "Varser, McIntyre & Henry for plaintiff, appellee.", "Ellis E. Page and F. D. Hackett for defendant, appellant." ], "corrections": "", "head_matter": "MRS. CLARA HOWELL PHILLIPS v. JUSTIN E. PHILLIPS.\n(Filed 2 June, 1943.)\n1. Divorce \u00a7\u00a7 11, 13\u2014\nUnder C. S., 1667, authorizing an action for alimony without divorce, subsistence and counsel fees pendente lite may now be allowed.\n3. Divorce \u00a7 13\u2014\nAlthough the plaintiff does not ask for divorce in a suit under C. S., 1667, she must charge and prove such injurious conduct on the part of the husband as would entitle her to a divorce a mensa et thoro at least.\n3. Divorce \u00a7 5\u2014\nCondonation, in an action between husband and wife, is a specific affirmative defense to be alleged and proven by the party insisting upon it, and is not required to be negatived by the opposing party.\n4. Divorce \u00a7 11-\u2014\nThe allowance of subsistence and counsel fees pendente lite is in the discretion of the trial court, who is not required to make formal findings of fact upon such a motion, unless the charge of adultery is made against the wife; and the court\u2019s ruling will not be disturbed in the absence of abuse of discretion.\nAppeal by defendant from Thompson, J., at October Civil Term, 1942, of RobesoN.\nThe plaintiff brought this action against her husband for alimony without divorce under C. S., 1667, alleging that he had separated himself from her and failed to provide necessary subsistence according to his means and condition in life. She further alleged as grounds of her action that defendant had committed adultery at various and sundry times, and had been living as man and wife with a certain woman in Brunswick County.\nThe complaint then is addressed to a description of the defendant\u2019s estate and earning capacity.\nThe defendant replied, denying substantial allegations of the complaint except as to his adultery. He admits that he was convicted of that crime in Brunswick County.\nPlaintiff made a motion for subsistence and counsel fees pendente lite, which was heard upon affidavits and oral testimony at October Civil Term, 1942, by Thompson, Judge. At that time there was elicited from the plaintiff an admission that defendant had visited her during the pendency of this action for one night, and that the two occupied the same bed. Plaintiff, however, testified that there was no sexual intercourse. The defendant insisted that his offense was thereby condoned as a matter of law.\nJudge Thompson passed upon the testimony and found that although the defendant had come to the house of the plaintiff on 12 October, 1942, and remained during the night, occupying the same bed with her, no marital or sexual relations were had, and held that there was no condonation of the adultery of the husband, as a matter of law, upon these facts..\nAt the same term of court, upon these affidavits and oral testimony, Judge Thompson, finding pertinent facts, made an order allowing subsistence to the plaintiff pending the final determination of the issues, of $35.00 per month, beginning with the month of October, 1942, and an additional sum of $75.00 attorney\u2019s fees pendente lite, the said sum to be taken into consideration when final allowance of attorney\u2019s fees have been made.\nThe order provides that the complaint should have the effect of lis pendens, entitling the plaintiff to a lien on the property for the satisfaction of allowances made in the order.\nThe defendant appealed from the order, assigning errors.\nVarser, McIntyre & Henry for plaintiff, appellee.\nEllis E. Page and F. D. Hackett for defendant, appellant." }, "file_name": "0276-01", "first_page_order": 328, "last_page_order": 330 }