#### BLANCHE LAWRENCE v. CARROLL LAWRENCE.

(Filed 27 March, 1946.)

1. Appeal and Error § 31b—

An appeal will not be dismissed for failure of appellant to serve statement of case on appeal, appellant being entitled to review for alleged errors appearing on the face of the record.

2. Divorce § 12—

Adultery of the wife is not a statutory bar to her right to subsistence pendente lite, 6. S., 50-15, and conceding her misconduct may be considered, in the instant case defendant’s contention that since the court refused to hear his evidence or find any facts in regard to the alleged adultery of his wife, it was without jurisdiction to order subsistence pendente lite, is untenable, it appearing that the order directed no payment for the use and benefit of his wife but ordered only an allowance pendente lite for the support of the child of the marriage and for counsel fees and a sum to the wife to defray the necessary and proper expenses of the court.

3. Same—

The fact that an action for the custody of a child is pending does not deprive the court of jurisdiction in an action for divorce a mensa from awarding an allowance for the support of the child pendente lite, since such order does not purport to adjudicate custody, but in this case the record failed to support the plea of a prior action pending.

4. Appeal and Error § 14: Divorce § 16—

An appeal from an order allowing support pendente lite takes the case out of the jurisdiction of the Superior Court, and the judge, pending the appeal is -functus officio, and is without authority to adjudge defendant in contempt for failing to make the payments as directed.

Appeal by defendant from Thompson, J., at October Term, 1945, of Caeteeet. Affirmed.

Plaintiff instituted an action for divorce a mensa in which she moved for alimony for herself and infant child and for attorney’s fees pendente lite. At the hearing on the motion 19 October, 1945, the court entered an order requiring defendant to pay $8 per week for the support of his child, $50 for counsel fees, and $25 to plaintiff “to defray the necessary and proper expenses of the Court.” No payment for the use and benefit of plaintiff was required. Defendant gave notice of appeal to this Court.

Thereafter, on 5 November, 1945, pending the appeal the defendant was adjudged in contempt for failure to make the payments required in the order of 19 October, 1945, and committed to jail. Thereupon he applied to this Court for a writ.of supersedeas which issued 16 November, 1945.

*222 Charles L. Abernethy, Jr., for defendant, appellant.

No counsel contra.

BarNhill, J.

Tbe motion of plaintiff to dismiss on tbe grounds tbat defendant served no ease on appeal cannot be sustained. Tbe case is bere for review of alleged error appearing on tbe face of tbe record. Bell v. Nivens, 225 N. C., 35.

Tbe defendant on bis appeal from tbe order of 19 October relies primarily on tbe contention tbat be alleged tbe adultery of tbe wife in bar of ber right to alimony pendente lite and tbat tbe court declined to bear any evidence or to make any finding of fact in respect thereto. He asserts tbat without such finding tbe court was without jurisdiction to make tbe order entered.

Tbe provision making tbe adultery of tbe wife a bar to ber right to alimony is a part of Gr. S., 50-16, relating to subsistence without divorce. It is not included in Gr. S., 50-15, under which plaintiff's motion was made.

¥e may concede, however, tbat tbe misconduct of tbe wife is a matter for consideration on a motion of this nature. Even so, tbe plea will not avail tbe defendant for tbe simple reason tbe judge did not allow tbe plaintiff alimony pendente lite. He only required tbe payment of $8 per week for tbe use and benefit of defendant’s infant child. In no event does tbe adultery of tbe wife discharge or bar tbe defendant’s duty in this respect.

Nor can defendant’s plea to tbe jurisdiction of tbe court for tbat another action for tbe custody of tbe child is now pending be sustained. Tbe record fails to support tbe plea. Furthermore, tbe court made no order awarding custody. It merely required tbe defendant to contribute to tbe support of bis child pending trial of tbe action. As to this be has no just cause to complain. >

Tbe appeal from tbe order allowing support pendente 'lite for the child took tbe case out of tbe jurisdiction of tbe Superior Court. Pending tbe appeal tbe judge was functus officio. Hence tbe adjudication of contempt and tbe order of imprisonment are void and of no effect. Vaughan v. Vaughan, 211 N. C., 354, 190 S. E., 492; Ragan v. Ragan, 214 N. C., 36, 197 S. E., 554; Ridenhour v. Ridenhour, 225 N. C., 508. They must be vacated.

On tbe main appeal tbe judgment below is

Affirmed.