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7 N.C. App. 562

173 S.E.2d 33

Hatcher v. Hatcher

Court of Appeals of North Carolina · decided 1970-04-01

Cited by 12 later decisions — most recently May 1982

12 state decisions

Key passage — most relied on by later courts

““In making such findings of fact it is not necessary that the trial judge make detailed findings as to each allegation and evidentiary fact presented. It is necessary that he find the ultimate facts sufficient to establish that the dependent spouse is entitled to an award of alimony pendente lite under the provisions of G.S. 50-16.3 (a).””

quoted by 1 later decision, including 10 N.C. App. 402 - Peoples v. Peoples

Relies on 6 N.C. App. 410 - Blake v. Blake

Good law ✅— No negative treatment on recordhow we know

Decided 1970-04-01

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BeocK, J.

¶1 The only question presented by this appeal is whether the order appealed from contains sufficient findings of fact to support an award of alimony pendente lite and counsel fees.

¶2 G.S. 50-16.8(f), which is applicable to this case, provides: “When an application is made for alimony pendente lite, the parties shall be heard orally, upon affidavit, verified pleading, or other proof, and the judge shall find the facts from the evidence so presented.” (Emphasis added.) As pointed out by Parker, J., in Blake v. Blake, 6 N.C. App. 410, 170 S.E. 2d 87, the present statutory requirement for findings of fact by the trial judge in pendente lite awards of alimony is a departure from the practice as it existed prior to 1 October 1967.

¶3 If it can be said that the trial judge has sufficiently found that the plaintiff is a dependent spouse (50-16.3(a)), and that he has sufficiently found that the plaintiff does not have sufficient means *564 whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof (50-16.3 (a) (2)); nevertheless the order as entered is devoid of a finding that defendant abandoned plaintiff so as to entitle her to relief in her action for alimony without divorce and to alimony 'pendente lite upon this motion (50-16.3(a)(1)). Also the order is devoid of a finding that the defendant is capable of making the payments required (50-16.5 (a)).

¶4 We do not interpret G.S. 50-16.8 (f) to require the trial judge to make findings as to each allegation and evidentiary fact presented. Blake v. Blake, supra. However, it is necessary for the trial judge to make findings from which it can be determined, upon appellate review, that an award of alimony pendente lite is justified and appropriate in the case.

¶5 Plaintiff-appellee contends that Rule 52(a) (2) of the Rules of Civil Procedure (G.S. Chap. 1A), which became effective January 1, 1970, is controlling in this case and that the judge was not required to make findings of fact unless requested to do so by a party. We do not agree. The Rules of Civil Procedure are of general application and would not abrogate the requirements of a statute of more specificity. Therefore, since G.S. 50-16.8 (f) refers specifically to an application for alimony pendente lite, it would control in the case before us.

¶6 This case is remanded for rehearing on plaintiff’s motion for alimony pendente lite and attorney’s fees.

¶7 Error and remanded.

Beitt and Gkaham, JJ., concur.
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