{ "id": 8572756, "name": "NANCY JOHNSON CREECH v. JAMES OSBORNE CREECH", "name_abbreviation": "Creech v. Creech", "decision_date": "1962-02-02", "docket_number": "", "first_page": "356", "last_page": "358", "citations": [ { "type": "official", "cite": "256 N.C. 356" } ], "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": "197 S.E. 554", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628517 ], "opinion_index": 0, "case_paths": [ "/nc/214/0036-01" ] }, { "cite": "55 S.E. 2d 195", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631794 ], "opinion_index": 0, "case_paths": [ "/nc/230/0660-01" ] }, { "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": "85 S.E. 2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612815 ], "opinion_index": 0, "case_paths": [ "/nc/241/0491-01" ] } ], "analysis": { "cardinality": 306, "char_count": 5494, "ocr_confidence": 0.564, "pagerank": { "raw": 1.6874293963187295e-07, "percentile": 0.6985339685827243 }, "sha256": "8113a5754619f3ec2a8779fbcd1bd5bd2fb976c0d440690e6ce274c59bd138eb", "simhash": "1:e35156c5c6479ae9", "word_count": 938 }, "last_updated": "2023-07-14T16:51:02.884412+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NANCY JOHNSON CREECH v. JAMES OSBORNE CREECH." ], "opinions": [ { "text": "Moore, J.\nThe court erred in failing to make findings with respect to the issue of plaintiff\u2019s alleged adultery.\nG.S. 50-16 provides that in a suit by a wife for alimony without divorce \u201cit shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony, and if the wife shall deny such plea, and the issue be found against her by the judge, he shall make no order allowing her any sum whatever as alimony, or for her support, but only her reasonable counsel fees.\u201d An allegation in an answer is deemed controverted without necessity of reply if it does not relate to a counterclaim. G.S. 1-159; Nebel v. Nebel, 241 N.C. 491, 85 S.E. 2d 876. Plaintiff did not reply and expressly deny defendant\u2019s allegations of adultery, but these allegations do not relate to a counterclaim. Hence, they are taken as controverted.\nOn motion for alimony pendente lite made in an action by the wife against the husband pursuant to G.S. 50-16, the judge is not required to find the facts as a basis for an award of alimony except when the adultery of the wife is pleaded in bar. Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436. In the instant case defendant expressly pleaded the adultery of plaintiff in bar of her claim to alimony and offered evidence in support of his plea. The order of the court awarding alimony pen-dente lite to plaintiff without finding the facts with respect to this plea ignores the provisions of G.S. 50-16 quoted above. Williams v. Williams, 230 N.C. 660, 55 S.E. 2d 195. Defendant is entitled to a rehearing upon plaintiff\u2019s motion for alimony pendente lite.\nPending this appeal both parties moved for a modification of the order of 17 February 1961, and plaintiff requested that a citation be served on defendant for failure to make the payments in accordance with the order. These motions were continued pending the outcome of the appeal. Our decision herein renders them moot. Furthermore, an order appealed from may not be modified while the appeal is pending for the Superior Court is without authority to enter the subsequent order. Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554.\nThe cause is remanded for rehearing of plaintiff\u2019s motion for alimony pendente lite and for findings of fact in accordance with the statute and decisions of this Court.\nError and remanded.", "type": "majority", "author": "Moore, J." } ], "attorneys": [ "Jones, Reed & Griffin for defendant appellant.", "J. Harvey Turner for plaintiff appellee." ], "corrections": "", "head_matter": "NANCY JOHNSON CREECH v. JAMES OSBORNE CREECH.\n(Filed 2 February, 1962.)\n1. Pleadings \u00a7 10\u2014\nAn allegation in tbe answer wbicb does not relate to a counterclaim is deemed controverted without necessity of reply. G-.S. 1-159.\n2. Divorce and Alimony \u00a7 16\u2014\nIn tbe wife\u2019s action for alimony without divorce, the husband\u2019s allegations of adultery on the part of the wife, set up as a defense, are deemed denied without the necessity of a reply.\n3. Divorce and Alimony \u00a7 18\u2014\nWhere the husband alleges adultery on the part of his wife as a defense in her action for alimony without divorce, and offers evidence in support thereof upon the hearing of the wife\u2019s motion for alimony pen-dente lite, it is error for the court to order alimony pendente lite without finding the facts with respect to the alleged adultery. G.S. 50-16.\n4. Appeal and Error \u00a7 13\u2014\nThe Superior Court is without authority to modify an order while an appeal therefrom is pending.\nAppeal by defendant from C'owper, J., at Chambers 17 February 1961 in Lenoie.\nThis action was instituted on 23 January 1961 pursuant to G.S. 50-16 for alimony without divorce and custody of children.\nPlaintiff wife alleges inter alia that defendant abandoned her without just cause and without fault on her part and refuses to provide adequate support for her and the four minor children of the marriage, and that she is a fit and suitable person to have custody of the children.\nDefendant husband, answering, denies, except as to the fact of the marriage and the paternity of the children, the allegations of the complaint, and affirmatively alleges that for several months prior to 11 January 1961 plaintiff engaged in acts of adultery with a named person, that defendant has not cohabited with her since he learned of her adulterous conduct, and that she is not a fit and suitable person to have custody of the children.\nPlaintiff moved for alimony pendente lite and custody of the children. At the hearing on the motion both parties were present and represented by counsel. The court heard and considered the pleadings, oral testimony and affidavits. Defendant offered evidence tending to support his plea of adultery; plaintiff offered evidence tending to refute it.\nThe court made no findings with respect to the alleged adultery of plaintiff, but found as a fact that plaintiff and defendant were both fit and suitable persons to have custody of the children, plaintiff is entitled to support, defendant has wilfully abandoned plaintiff and the children of the marriage, and that the acts and conduct of defendant as alleged constitute grounds for divorce a mensa et thoro.\nOn 17 February 1961 the court entered an order that, pending a final determination of the issues involved, plaintiff and defendant each have custody of two of the children, plaintiff have the exclusive use and benefit of the house owned by the parties as tenants by the entireties, and defendant keep up the mortgage payments on the house and pay to plaintiff $160.00 per month for support of herself and the two children in her custody.\nDefendant appeals.\nJones, Reed & Griffin for defendant appellant.\nJ. Harvey Turner for plaintiff appellee." }, "file_name": "0356-01", "first_page_order": 392, "last_page_order": 394 }