{
  "id": 8566020,
  "name": "JANIS P. MILLER v. W. M. MILLER",
  "name_abbreviation": "Miller v. Miller",
  "decision_date": "1967-04-19",
  "docket_number": "",
  "first_page": "140",
  "last_page": "143",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T21:31:56.885447+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JANIS P. MILLER v. W. M. MILLER."
    ],
    "opinions": [
      {
        "text": "PER CuRiAM.\nDefendant\u2019s first two assignments of error relate to the refusal of the judge to allow him to cross-examine plaintiff and to elicit oral testimony from his mother. In recognition of the limitations of time and the duration of sessions of court, the General Assembly provided in G.S. 50-16 that applications for alimony pendente lite \u201cmay be heard in or out of term, orally or upon affidavit, or either or. both.\u201d With these words, the legislature gave the judge hearing the motion the discretion to decide in what form he should receive the evidence in his efforts to ascertain the truth. In hearing the motion in the instant case, Judge Olive limited the testimony to that contained in affidavits. This record and case on appeal contain no suggestion that, in so doing, he abused his discretion. He applied the same rule to both parties.\nDefendant\u2019s third assignment is that the court erred in making any award to plaintiff when \u201cplaintiff\u2019s affidavit showed that plaintiff had ample income to meet her needs pending the trial of this cause, without special requirements for a greater income than was already available to her.\u201d Suffice it to say that the case on appeal contains no affidavit by plaintiff which shows that she has such funds. On the contrary, the complaint contains the positive aver-ments that she is unable to provide adequate support for herself and to defray the necessary expenses of this action and that defendant has contributed nothing to her support since he separated himself from her in August 1966.\nThe judge, after hearing the evidence \u2014 only a portion of which appellant included in his case on appeal \u2014, awarded alimony pen-dente lite as set out in the judgment. \u201c(I)t is presumed that he found the facts from the evidence presented to him according to his conviction about the matter and that he resolved the crucial issues in favor of the party who prevailed on the motion.\u201d Williams v. Williams, 261 N.C. 48, 55, 134 S.E. 2d 227, 232. The amount allowed a wife for her subsistence pendente lite and for her counsel fees is a matter for the trial judge. \u201cHis discretion in this respect is not reviewable except in case of an abuse of discretion.\u201d Rowland v. Rowland, 253 N.C. 328, 331, 116 S.E. 2d 795, 797. Accord, Mercer v. Mercer, 253 N.C. 164, 116 S.E. 2d 443. No abuse appears here.\nIt is noted that, in preparing the transcript, appellant completely ignored the July 1, 1963 amendment to Rule No. 19(1) of the Rules of Practice in the Supreme Court of North Carolina. The attention of the bar is once again directed to this rule.\nThe judgment of the court below is\nAffirmed.",
        "type": "majority",
        "author": "PER CuRiAM."
      }
    ],
    "attorneys": [
      "Crisp, Twiggs & Wells by L. Bruce McDaniel for plaintiff ap-pellee.",
      "Jacob W. Todd for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JANIS P. MILLER v. W. M. MILLER.\n(Filed 19 April, 1967.)\n1. Divorce and Alimony \u00a7 18\u2014\nIn hearing a motion for alimony pendente Me, the court has the discretion to decide in what form he should receive evidence in his efforts to ascertain the truth, and the action of the court in limiting the evidence of both parties to affidavits is within his discretion and will not be disturbed in the absence of a showing of abuse.\n2. Same\u2014\nWhere plaintiff\u2019s complaint in a suit for alimony without divorce alleges that defendant had contributed nothing to her support since a specified date and that her earnings as a secretary are not sufficient to support her adequately and defray the costs of her suit, her complaint, treated as an affidavit, is sufficient to support the court\u2019s order for subsistence and counsel fees pendente lite, and defendant\u2019s contention that it affirmatively appeared from her allegations that she had ample income to meet her needs pending trial is not supported by the record.\n3. Same\u2014\nIn a hearing by the court of plaintiff's motion for subsistence and counsel fees pendente Mte, it will be presumed that the court found facts from the conflicting affidavits and allegations of the pleadings, treated as affidavits, sufficient to support its order awarding subsistence and counsel fees pendente lite.\n4. Same\u2014\nThe amount of subsistence pendente lite is a matter resting in the sound discretion of the trial court.\n5. Appeal and Error \u00a7 34\u2014\nTlie requirement of the amendment to Rule of Practice in the Supreme Court No. 19(1) is again brought to the attention of the Bar.\nAppeal by defendant from Olive, E.J., February 19, 1967 Non-Jury Session of WAKE.\nAction for alimony without divorce under G.S. 50-16. The following facts appear from the pleadings:\nPlaintiff and defendant were married on October 5, 1963, and lived together as husband and wife until August 19, 1966. They have no children. Plaintiff has been gainfully employed as a secretary since her marriage, and, from January 1964 to February 1965, she supported herself and defendant while he was a student at North Carolina State University at Raleigh. She alleges that defendant, after having mistreated her throughout their marriage (in ways specified in the complaint), abandoned her and their home in Raleigh on August 19, 1966. On that day he moved to Misenheimer, where he has since lived, refusing to permit her to join him. Defendant denies abandoning plaintiff and alleges that they separated by mutual consent on September 4, 1966. She continues in possession of the household furniture, which the parties acquired during the time they lived together and on which there is a balance due of $80.00. When defendant went to Misenheimer, he left with plaintiff his 1964 Pontiac automobile, on which there is a balance due of $750.00. She avers that he agreed she was \u201cto have the possession and use of the automobile.\u201d He admits that he left the car with her, but contends that she was to have it only until October 15, 1966. In the early morning hours of January 4, 1967, defendant came to Raleigh and surreptitiously took the Pontiac, leaving plaintiff a 1954 Chevrolet, which, she alleges (and he denies), is dilapidated and beyond repair.\nPlaintiff alleges that at all times since her marriage to defendant she has been \u201ca loyal, faithful, and dutiful wife, and has contributed her time, money, and energy in attempting to establish and maintain a home for defendant.\u201d Defendant admits this allegation. Plaintiff further alleges that defendant has contributed nothing to 'her support since August 1966 and that her earnings as a secretary are not sufficient to support her adequately or to defray the costs of this suit. She asks for alimony pendente lite and counsel fees, possession of the automobile and furniture, and permanent alimony. Defendant denies that plaintiff is entitled to' alimony and that her income is insufficient for her necessary expenses.\nPlaintiff\u2019s motion for alimony pendente lite came on to be heard before Judge Olive on February 23, 1967. Both plaintiff and defendant offered affidavits, which \u2014 except for the complaint and answer \u2014 appellant did not include in his case on appeal. The case does, however, contain the statement that affidavits disclosed that defendant\u2019s gross monthly pay is 1550.00; his net pay, $420; and that plaintiff\u2019s net monthly pay is $268.30.\nAfter plaintiff had offered her affidavits, counsel \u201ctendered\u201d her as a witness; whereupon Judge Olive stated that he would consider affidavits only. Defendant\u2019s attorney then announced that he would like to cross-examine plaintiff. Permission to cross-examine was denied, and defendant excepted. After plaintiff had rested and defendant had offered two affidavits, his counsel called defendant\u2019s mother as a witness. The court again declined to hear oral testimony; whereupon defendant introduced his mother\u2019s affidavit, which is not in the transcript.\nJudge Olive entered judgment that, pending the trial of the action, defendant pay plaintiff $100.00 a month subsistence; that plaintiff be awarded the possession of the 1964 Pontiac and the furniture; that defendant make the payments on the car and pay the balance due on the furniture; and that he pay plaintiff\u2019s attorney $150.00 for his services rendered in this action. Defendant gave notice of appeal.\nCrisp, Twiggs & Wells by L. Bruce McDaniel for plaintiff ap-pellee.\nJacob W. Todd for defendant appellant."
  },
  "file_name": "0140-01",
  "first_page_order": 180,
  "last_page_order": 183
}