HATCHER v. HATCHER

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Docket Number

No. 7010DC110

Attorney(S)

T. Yates Dobson, Jr., for defendant appellant. McDaniel and Fogel, by L. Bruce McDaniel, for plaintiff appellee.

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Smart Summary

Factual and Procedural Background

This case involves an action for alimony without divorce initiated by the plaintiff-wife, who alleged constructive abandonment by the defendant-husband. The parties were married on October 26, 1968, and lived together until June 1, 1969. The plaintiff claimed that on May 31, 1969, the defendant threatened her with violence and ordered her to leave the home, leading her to leave with her two children from a previous marriage out of fear for her safety. The plaintiff further alleged that she was unable to obtain gainful employment and that the defendant refused to provide support despite having sufficient income. The defendant denied abuse and claimed the plaintiff left voluntarily, asserting he offered support if she returned home. After a hearing on the plaintiff’s motion for alimony pendente lite and attorney’s fees, the trial court ordered the defendant to pay alimony and counsel fees. The defendant appealed this order.

Legal Issues Presented

Whether the trial court's order awarding alimony pendente lite and attorney’s fees contained sufficient findings of fact to justify such an award under G.S. 50-16.8(f).
Whether the trial court is required to make specific findings of fact on abandonment by the defendant and his ability to pay when awarding alimony pendente lite.
Whether Rule 52(a)(2) of the Rules of Civil Procedure, which limits the requirement for findings of fact unless requested, overrides the statutory requirement in G.S. 50-16.8(f) for findings in alimony pendente lite cases.

Arguments of the Parties

Plaintiff-Appellee's Arguments

The plaintiff argued that she was a dependent spouse without means to support herself and entitled to alimony pendente lite and attorney’s fees.
She relied on the trial court's findings that she lacked sufficient means and that the defendant had sufficient income to support her.
The plaintiff contended that Rule 52(a)(2) of the Rules of Civil Procedure, effective January 1, 1970, meant the trial judge was not required to make findings of fact unless requested by a party.

Defendant-Appellant's Arguments

The defendant denied any abuse or threats and claimed the plaintiff left voluntarily.
He asserted he offered support if the plaintiff returned home and never refused to support her.
The defendant challenged the sufficiency of the trial court’s findings, particularly the absence of findings on abandonment and his ability to pay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Blake v. Blake, 6 N.C. App. 410, 170 S.E.2d 87	Clarification that the trial judge need not make findings on every allegation but must make sufficient findings to justify alimony pendente lite.	Used to interpret the statutory requirement under G.S. 50-16.8(f) that findings must be sufficient for appellate review but need not cover every evidentiary fact.

Court's Reasoning and Analysis

The court focused on the statutory requirement under G.S. 50-16.8(f) that the trial judge must make findings of fact when ruling on an application for alimony pendente lite. While the judge need not address every allegation or evidentiary fact, the findings must be sufficient to allow appellate review and to justify the award. The court found the trial court’s order insufficient because it lacked findings that the defendant abandoned the plaintiff and that he was financially capable of making the payments. The court rejected the plaintiff’s argument that Rule 52(a)(2) of the Rules of Civil Procedure eliminated the requirement for findings absent a party’s request, holding that the specific statutory mandate in G.S. 50-16.8(f) controls over the general procedural rule. Consequently, the court remanded the case for rehearing to allow proper findings consistent with the statute.

Holding and Implications

The court held that the trial court’s order awarding alimony pendente lite and attorney’s fees was erroneous due to insufficient findings of fact and remanded the case for rehearing.

The direct effect of this decision is to require the trial court to make explicit findings regarding abandonment and the defendant’s ability to pay before awarding alimony pendente lite. The opinion clarifies the primacy of statutory requirements for findings over general procedural rules but does not establish broader precedent beyond the specific statutory context.

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GENEVIEVE HATCHER v. BRUCE Y. HATCHER

1. Divorce and Alimony 18 — alimony pendente lite — necessity for and sufficiency of findings of fact G.S. 50-16.8(f) requires the trial judge to make findings of fact upon an application for alimony pendente lite; although the judge need not make findings as to each allegation and evidentiary fact, it is necessary for him to make findings from which it can be determined on appellate review that an award of alimony pendente lite is justified.

2. Divorce and Alimony 18 — alimony pendente lite — order — insufficiency of findings Order of the trial court directing the husband to pay alimony pendente lite to the wife and counsel fees to her attorney, held erroneous where there were no findings of fact that the husband abandoned the wife and that he was capable of making the required payments. G.S. 50-16.8 (f), G.S. 50-16.3(a)(1), G.S. 50-16.5(a).

3. Rules of Civil Procedure 52; Divorce and Alimony 18 — alimony pendente lite — necessity for findings — Rule 52(a)(2) The provision of Rule 52 (a) (2) that the trial judge is not required to make findings of fact unless requested to do so by a party does not abrogate the specific requirement of G.S. 50-16.8 (f) that the trial judge shall make findings of fact upon an application for alimony pendente lite.

4. Rules of Civil Procedure 1 — scope of rules — general application The Rules of Civil Procedure are of general application and do not abrogate the requirements of a statute of more specificity.

This is an action for alimony without divorce brought by plaintiff-wife alleging constructive abandonment by the defendant-husband. In her complaint plaintiff alleged: That the parties were married on 26 October 1968 and lived together as man and wife until 1 June 1969; that on 31 May 1969 defendant threatened plaintiff with violence and ordered her out of their house; that the plaintiff, pursuant to defendant's order to "get out" and fearing for her safety, took her two children by a previous marriage and left the home she had shared with the defendant; that the above acts were not provoked by the plaintiff; that no children were born to this marriage; that the plaintiff is forty eight years old and unable to obtain gainful employment; and that defendant has failed and refused to provide for plaintiff, and still refuses even though he has sufficient income to do so.

Defendant answered, alleging as a defense: that at no time during the marriage had he abused or threatened the plaintiff; that she left the home voluntarily; that he offered to provide support for the plaintiff if she would live in his home; and that he has never refused to support her. Defendant also offered affidavits concerning his past life, his general character and reputation in the community, and his financial condition.

After a hearing set for determination of plaintiff's motion for alimony pendente lite and reasonable attorney's fees, the district judge entered an order dated 12 November 1969 which provides in pertinent part as follows:

". . . it appearing to the court from the pleadings and affidavits submitted and from the oral testimony introduced by both the plaintiff and the defendant that the plaintiff is a dependent spouse without the means with which to support herself and is entitled to the relief demanded and that the plaintiff has not sufficient means to defray the proper and necessary expenses of this action, including reasonable attorney's fees; . . ."

Defendant appealed.

BROCK, J.

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.

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.

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 whereon to subsist during the prosecution of the suit and to defray the necessary expenses thereof (60-16.3 (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)).

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.

[3, 4] 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.

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

Error and remanded.

BRITT and GRAHAM, JJ., concur.