{
  "id": 8567355,
  "name": "EDNA GREY MARTIN v. WILLIAM AUGUSTUS MARTIN",
  "name_abbreviation": "Martin v. Martin",
  "decision_date": "1964-11-25",
  "docket_number": "",
  "first_page": "86",
  "last_page": "88",
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    {
      "type": "official",
      "cite": "263 N.C. 86"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "260 N.C. 765",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
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    {
      "cite": "252 N.C. 412",
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      "reporter": "N.C.",
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      "case_paths": [
        "/nc/252/0412-01"
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "244 N.C. 689",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T15:44:48.035422+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "EDNA GREY MARTIN v. WILLIAM AUGUSTUS MARTIN."
    ],
    "opinions": [
      {
        "text": "PeR Cueiam.\nThe allegations of the complaint, if established on the trial, are sufficient to base an award of alimony. Lawson v. Lawson, 244 N.C. 689, 94 S.E. 2d 826.\nThe court found facts, and the only findings with respect to defendant\u2019s financial circumstances and earnings are that his \u201ctake-home\u201d pay is $457 per mopth, and that he receives a $20 monthly pension from the Veterans Administration which is used by him \u201cin payment of his G. I. insurance and the loan on said policy of insurance.\u201d The court ordered that plaintiff \u201chave the right of possession of the home of the parties, owned by the entireties,\u201d that defendant \u201cpay on the note secured by deed of trust on said home . . . $110.00 per month,\u201d pay plaintiff for support of herself and children $42.50 per week, and pay the light, water, sewer and telephone (not including long distance calls) bills arising by reason of the use and occupancy of the home by plaintiff and the children.\nThe hearing was on affidavits. Defendant\u2019s uncontradicted affidavit tends to show the following facts: Defendant owns no real estate other than the home, which is owned by the entireties and is mortgaged. The home consists of a house and lot in Smith\u00f1eld; the house was renovated prior to the hearing. Defendant is obligated to make monthly payments, in addition to the payments required in the order herein, $41 automobile payments (30 payments remaining), $18 hospitalization insurance. Defendant has other indebtedness, $5000 borrowed for down payment on and renovation of the home, $300 for materials used in the renovation, $130 floor covering, $115 drug store account, $200 oil bill, $100 auto and fire insurance, and $250 city and county taxes. He is attempting to pay $25 per week on these accounts. The operation and maintenance of automobile for transportation to and from work costs $50 per month. Defendant\u2019s take-home pay is $457 per month.\nIf defendant\u2019s evidence- is true, defendant will have, including the payments required by the order herein, fixed and certain charges of at least $370 per month out of his monthly income of $457. From the balance of $87 per month defendant must provide for himself food, clothing, shelter and other necessaries, provide for the op\u00e9ration and maintenance of his automobile for transportation to and from work, provide for emergencies, and make payments on additional obligations of $6095 incurred on behalf of his family. It is obvious that such is impossible.\nThere is no evidence that defendant has any income other than his monthly wages, or any other assets to which resort may be had. The amount of alimony allowable pendente lite is a matter of sound judicial discretion having regard to. the condition and circumstances of the parties and the current earnings of the husband. Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912. In providing for the support of minor children the ability of the father to pay, as well as the needs of the children, must be taken into consideration by the court. Coggins v. Coggins, 260 N.C. 765, 133 S.E. 2d 700.\nIf the facts set out in defendant\u2019s affidavit are true, the payments required of defendant are clearly excessive, unrealistic and beyond the limits of judicial discretion. The court made no specific findings with respect to the matters set out in the affidavit, and it does not appear whether they were considered. The cause is remanded for determination of proper alimony 'pendente lite and subsistence for the children in accordance with the rules above stated.\nError and remanded.",
        "type": "majority",
        "author": "PeR Cueiam."
      }
    ],
    "attorneys": [
      "Spence & Mast and Britt & Ashley for plaintiff.",
      "Albert A. Corbett and Pope Lyon for defendant."
    ],
    "corrections": "",
    "head_matter": "EDNA GREY MARTIN v. WILLIAM AUGUSTUS MARTIN.\n(Filed 25 November, 1964.)\n1. Divorce and Alimony \u00a7 18\u2014\nWhile the amount of alimony pendente Me for the support of the wife and minor children rests in the sound discretion of the trial court, such discretion must be exercised with regard to the conditions and circumstances of the parties and the current earnings of the husband and his ability to pay, as well as the needs of the children.\n2. Same; Appeal and Error \u00a7 46\u2014\nWhere the amounts allowed as alimony pendente Me are excessive and unrealistic if the facts set forth in the husband\u2019s affidavit as to his earnings and obligations are true, such allowance exceeds the limits of judicial discretion, and in the absence of specific findings with respect to the matters set out in the affidavit or indication that such matters were considered by , the court, the cause must be remanded.\nAppeal by defendant from Johnson, J., at Chambers July 1, 1964. From JohNstoN County Superior Court.\nThis is an action pursuant to G.S. 50-16 for alimony without divorce, custody of children, subsistence for the children, attorney\u2019s fees, and possession of the home of the parties.\nPlaintiff and defendant were married 24 May 1958 and are now separated. There are three children of the marriage, ages 5, 3 and 1.\nThe cause came on for hearing and was heard on plaintiff\u2019s motion for custody and alimony pendente lite. Defendant interposed a demurrer ore tenus. The court overruled the demurrer, found certain facts, and adjudged that it is for the best interest and welfare of the children that their custody be awarded to the plaintiff, with visitation privileges to the father, that plaintiff \u201chave possession and control\u201d of the home, and that defendant assume certain obligations and make specified payments for the support of plaintiff and the children.\nDefendant appeals.\nSpence & Mast and Britt & Ashley for plaintiff.\nAlbert A. Corbett and Pope Lyon for defendant."
  },
  "file_name": "0086-01",
  "first_page_order": 124,
  "last_page_order": 126
}