Briggs v. . Briggs

BarNhill, J. The plaintiff’s contention that defendant is not entitled to support and counsel fees pending the litigation for the reason that she seeks no affirmative relief in her answer cannot be sustained. Medlin v. Medlin, 175 N. C., 529, 95 S. E., 857; Holloway v. Holloway, 214 N. C., 662. The plaintiff by his suit seeks to deprive the defendant of her legal right to support from him. He must furnish her with the necessary funds -with which to defend the action and to support herself pending the litigation. The plaintiff’s contention that the judgment in the criminal action charging the plaintiff with abandonment of the defendant instituted in February, 1938, bars the defendant’s rights herein is equally untenable. The judgment in a criminal action is not res judicata as to the rights of the defendant to support pending this litigation and to counsel fees. •The plea in bar interposed by the defendant that the separation between the plaintiff and the defendant was brought about and caused by the unlawful and wrongful conduct of the plaintiff is a valid defense, and if established, is sufficient to defeat the plaintiff’s cause of action. Brown v. Brown, 213 N. C., 347, and cases there cited. The defendant is entitled to be heard thereon, and pending the hearing, upon the facts found by the court, the plaintiff was properly required to furnish defendant with counsel fees and support pending the litigation. Upon the hearing here the death of the defendant was suggested to the court and motion was made that the administrator of the defendant’s estate be made a party defendant. This motion is allowed. The defendant’s administrator is entitled to recover only such payments as had matured and were due at the time of the death of the defendant. The plaintiff must be required to pay the allowance for counsel fees and such installments of alimony allowed the defendant as were due at the time of her death. Judgment will be entered accordingly. Modified and affirmed.