Winfield v. . Winfield

Stacy, C. J. While tbe plaintiff objected to tbe order transferring tbe issue of paternity to tbe civil issue docket for trial, no exception was noted to this part of tbe judgment.* Hence, tbe correctness of tbe order is without challenge on tbe instant record. Nor is tbe sufficiency of tbe defendant’s affidavit to raise tbe issue presently presented. Tbe only question is tbe correctness of tbe order, entered on plaintiff’s motion, making partial provision for the child’s support and for part payment on counsel fees. In tbe case of Green v. Green, 210 N. C., 147, 185 S. E., 651, where a minor child sued her putative father for support and maintenance, it was held tbat neither by statute nor by the common law was tbe plaintiff entitled to support and counsel fees pendente lite. However, tbat case stands on a different footing from this one. There, an independent action was brought by a minor against her father for support and maintenance. She also asked for counsel fee pending the trial. Tbe action was sustained, but allowance pendente lite was denied for want of legislative sanction or authorization. Here, tbe mother of tbe child files a motion in tbe divorce action impartial support of tbe child, the only remedy available to her, In re Blake, 184 N. C., 278, 114 S. E., 294, and she is met with tbe defendant’s denial of paternity and demand for a jury trial to determine tbe issue. In these circumstances, tbe court evidently thought it but meet and proper tbat tbe plaintiff should be awarded support and suit money pendente lite, if she must needs await tbe outcome of a jury trial bad at the instance of' tbe defendant. It is provided by G. S., 50-13, that after complaint filed in any divorce action, “both before and after final judgment,” it shall be lawful for the judge “to make such orders respecting the care, custody, tuition and maintenance of tbe minor children of tbe marriage as may be proper, and from time to time to modify or vacate such orders.” Under this statute, it would seem that the allowance, here made for support and counsel fees pendente lite', was within tbe sound discretion of tbe trial judge. Story v. Story, 221 N. C., 114, 19 S. E. (2d), 136; Sanders v. Sanders, 167 *258 N. C., 317, 83 S. E., 490. It is such an order, respecting the care and maintenance of the minor child, as was deemed proper. ' The presumption of legitimacy, which arises from the birth of the child in.wedlock, inures to the benefit of the plaintiff on her present motion. Certainly, this presumption, if not conclusive, continues until otherwise determined. Having sought and obtained an order transferring the matter to the civil issue docket for trial before a jury, the defendant, on this record, can hardly complain at being required to assist in the payment of part of the costs. The order will be allowed to stand. Affirmed.