Masten v. . Masten

Winborne, J. Appellant calls in question judgment on the pleadings, .and contends that an issue of fact as to separation and failure to support is raised. Careful consideration of the pleadings in connection with the statute and decisions of this Court lend support to appellant’s contention. C. S., 1661; Public Laws 1919, ch. 24, as amended by Public Laws 1921, ch. 123, and Public Laws 1923, ch. 52. Crews v. Crews, 175 N. C., 168, 95 S. E., 149; Vincent v. Vincent, 193 N. C., 492, 137 S. E., 426. The statute provides that the wife may institute an action to have reasonable subsistence and counsel fees allotted and paid or secured to *26 her from the estate or earnings of her husband, (1) if he shall separate-himself from her and fail to provide her and the children of the marriage with necessary subsistence according to his means and condition in life; or (2) if he shall be a drunkard or spendthrift; or (3) if he-shall be guilty of any misconduct or acts which would be cause for-divorce, either absolute or from bed and board. These issuable facts when raised by the pleadings are to be determined by the jury at the-final hearing. Crews v. Crews, supra; Vincent v. Vincent, supra. In the Crews case, supra, Hoke, J., said: “When these issues are-admitted by the parties or properly established to be in applicant’s favor, the amount of the alimony and how the same is to be determined, etc., are questions of fact to be determined by the judge,, having regard to the condition and circumstances of the parties, including also the-separate estate of the wife, if she have any. But where these essential issues are made by the pleadings the right of trial by jury arises to the parties, and it then becomes the duty of the judge to transfer the same-for such purposes to the civil issue docket,” citing Skittletharpe v. Skittletharpe, 130 N. C., 72, 40 S. E., 851; Cram v. Cram, 116 N. C., 288, 21 S. E., 197. In the present case plaintiff alleges that defendant has willfully abandoned her and their children and failed to provide them with the necessary subsistence. Defendant specifically denies the allegation. This raises an issue for the jury. The judgment below is Reversed.