Byerly v. . Byerly

Pee Cubiam. C. S., 1667, in part, is as follows: “If any husband • shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, . . . and it shall be lawful for such judge to cause the husband to secure so much of his estate or to pay so much of his earnings, or both, as may be proper,” etc. This section was amended by Public Laws 1921, ch. 123, as follows: “That section one thousand six hundred and sixty-seven (1667) of Consolidated Statutes of North Carolina be amended by inserting in line seven (7), between the words ‘subsistence’ and ‘allotted’ the words ‘and counsel fees’; and by inserting in line twelve between the words ‘subsistence’ and ‘and’ the words ‘counsel fees’: Provided, this act shall not apply in any way to pending litigation.” Further amended by Public Laws 1923, ch. 52: “That section one thousand six hundred and sixty-seven of the Consolidated Statutes be *533 amended by adding at tbe end of said section tbe following: ‘Provided, tbat in all applications for alimony under tbis section it shall be competent for tbe busband to’ plead tbe adultery of tbe wife in bar of ber right to such alimony, and if tbe wife shall deny such plea, and tbe issue be found against ber by tbe judge, be shall make no order allowing ber any sum whatever as alimony, or for ber support, but only ber reasonable counsel fees.’ ” Tbe defendant denied tbat be bad abandoned or separated himself from bis wife, but on tbe contrary charged tbat she bad abandoned and separated herself from him. There is no necessity to rehearse tbe evidence. It is an unfortunate domestic trouble and a repetition of tbe differences between tbe busband and wife is edifying to no one. Tbe court below found no facts. Tbe presumption is tbat be based tbe judgment on tbe fact tbat plaintiff abandoned and separated herself from tbe defendant, and defendant did not abandon and separate himself from plaintiff. C. S., 1667, supra, and tbe amendments do not contemplate tbat a wife who wrongfully abandons and separates herself from ber busband should be awarded subsistence and counsel fees. See Allen v. Allen, 180 N. C., 465; Price v. Price, 188 N. C., 640; McManus v. McManus, 191 N. C., 740. Tbe judgment below is Affirmed.