Public-domain · open source
OpenJurist

257 N.C. 663

Mills v. Mills

Supreme Court of North Carolina

Decided September 19, 1962

Supreme Court of North Carolina · decided 1962-09-19

Cited by 4 later decisions — most recently March 2011

4 state decisions

Key passage — most relied on by later courts

“[a]ctual ability to pay is not a factor requiring findings of fact under N.C.G.S. § 50-16.3A(b). Furthermore, “the failure of the court to make a specific finding of fact as to' [the supporting spouse’s] ability to pay is not deemed a sufficient ground for disturbing the court’s order.” Although actual ability to pay is relevant to the court’s determination of fairness to the parties, it is not error for a court to omit a specific finding of actual ability to pay where the court clearly considered the defendant’s actual ability to pay.”

quoted by 1 later decision, including 210 N.C. App. 319 - Robinson v. Robinson

Relies on Hester v. Hester

Good law ✅— No negative treatment on recordhow we know

Decided 1962-09-19

View the full empirical analysis of this case →

PeR Cueiam.

¶1The facts alleged in the complaint and in the amended complaint are sufficient to constitute a cause of action under G.S. § 50-16. Moreover, there was plenary evidence to support each of the court’s findings of fact.

¶2True, as contended by defendant, the court made no specific finding of fact as to defendant’s ability to pay. Even so, defendant admits he is an able-bodied man; and evidence offered in his behalf is to the effect defendant is hard working, industrious, and attentive to his business. While not set forth as a specific finding of fact, the order itself indicates the court considered the allowances reasonable and *666there is. plenary evidence to this effect. In these circumstances, the failure of the court to make a specific finding of fact as to defendant’s ability to pay is not deemed a sufficient ground for disturbing the court’s order.

¶3As to defendant’s contention that he had pleaded the adultery of his wife in bar of her right to alimony, and that plaintiff had not denied such plea, and that the court made no finding with reference thereto, it is noted: Defendant, in his answer to the original complaint, alleged plaintiff had committed adultery with a named person back in 1950 and that defendant had condoned her said unfaithful conduct. (Note: The first separation of plaintiff and defendant was in September, 1961.) Defendant, in his answer to the amended complaint, alleged plaintiff and a (different) named person, during the pendency of this action, had engaged “in amorous conduct.” In our view, these allegations do not constitute a sufficient plea of adultery on the part of the wife to bar her right to alimony or to require a denial by the wife or to present an issue for determination by the court on plaintiff’s motion for alimony and counsel fees pendente lite. No evidence was offered by defendant to support his said allegations.

¶4As to plaintiff’s procedure by filing amended complaint herein, see Hester v. Hester, 239 N.C. 97, 100, 79 S.E. 2d 248.

¶5Defendant having failed to show any sufficient ground to disturb it, Judge Parker’s interlocutory order of June 28, 1962, is affirmed.

¶6Affirmed.

/257/nc/663 · .json · Public domain