Davidson v. . Davidson

Adams, J. This is an application for alimony pending the plaintiff’s suit for divorce from bed and board. It is authorized by C. S., 1666, which is to be distinguished from section 1665 providing for ali *627 mony after judgment and from section 1667 providing for a reasonable subsistence under certain conditions without impairing the marriage contract. The defendant contends that the amount allowed as temporary alimony is excessive and makes this the ground of one of bis exceptions. It bas been beld in several of our decisions that while the right to alimony involves a question of law,.the amount of alimony and counsel fees is a matter of judicial discretion and usually not reviewable. Jones v. Jones, 173 N. C., 279; Barker v. Barker, 136 N. C., 316; Moore v. Moore, 130 N. C., 333; Miller v. Miller, 75 N. C., 70. Excepting attorney’s fees and expenses, the amount ordinarily allowed pendente lite under section 1666 is not in excess of the amount prescribed by section 1665 upon a final judgment for divorce from bed and board- — • that is, one-third part of the net annual income from the estate and occupation or labor of the party against whom the judgment is rendered. 19 C. J., 222 (532). But this rule is not inflexible and the amount to be allowed is not arbitrarily fixed by the statute. “The income,” said Mr. Justice Bynum, in Miller v. Miller, supra, “may be derived from personal labor, wages, or salary, as well as from lands or personal property”; and in Muse v. Muse, 84 N. C., 36, Mr. Justice Ruffin remarked, “A husband is not excused from the maintenance of his wife because he lacks an estate. He must labor, if need be, for her support.” But “before an allowance of temporary alimony is made, admission or proof of the husband’s ability to pay it should be shown. The allowance may be based on the husband’s earnings, or his earning capacity, although he is not possessed of money or property.” 19 C. J., 216 (518). The parties hold the house and lot in the city of Charlotte as an estate by the entirety. Granting that the defendant has the right to control, use, and lease the property during coverture (Dorsey v. Kirkland, 177 N. C., 520), we find nothing in the record which determines either its actual or its rental value. The judge found the fact to be that the defendant’s only remaining property is the income derived from his practice as a physician. It is also undetermined whether his present income is the reasonable measure of his earning capacity. Apparently his only source of revenue is an annual income of $2,000, from which is to be deducted $950 for expenses necessary to the prosecution of his business. His net annual income, then, is $1,050, less than $100 a month; and by the judgment he is required to pay the plaintiff more than his net income. The amount, we apprehend, is proportionately more than the judge intended to afipw. It may be all the circumstances disclosed át the hearing do not appear in the record, but upon the facts found and presented by the appeal, it would seem *628 that tbe allowance exceeds that which is contemplated by the statute. The situation, of course, may be clarified by a more comprehensive finding of the facts. While we think the alimony allowed by the judge is more than his findings justify, still upon another hearing additional evidence may be received in reference to the value of defendant’s entire estate, and the net annual income that is or should be derived from his estate and labor. The ultimate object is to secure such alimony as may be “just and proper, having regard to the circumstances of the parties.” O. S., 1666. That the complaint does not state a cause of action is another contention which is urged by the defendant. A discussion of the questions pertaining to the sufficiency of the complaint may be found in the following cases: Everton v. Everton, 50 N. C., 202; Erwin v. Erwin, 57 N. C., 82; Joyner v. Joyner, 59 N. C., 322; McQueen v. McQueen, 82 N. C., 471; White v. White, 84 N. C., 342; Jackson v. Jackson, 105 N. C., 433; O’Connor v. O’Connor, 109 N. C., 140; Martin v. Martin, 130 N. C., 27; Garsed v. Garsed, 170 N. C., 672. Everton v. Everton, however, is criticized obiter in Jones v. Jones, 173 N. C., 283. The exception addressed to the alleged insufficiency of the complaint presents a serious question; but as this is a preliminary motion and as the case goes back on another ground, we think the plaintiff should not be denied the right of moving to amend her complaint so as to make its allegations more comprehensive and more specific. Jackson v. Jackson, supra. It is also insisted for the defendant that the court erred in hearing evidence of circumstances occurring within six months after the institution of the action, but'there were antecedent facts tending to support the plaintiff’s contentions, and we are not warranted in reversing the judgment solely on this ground. The issues have not yet been submitted to the jury. Reversed and remanded.