Trull v. . Trull

Winboene, J. This appeal presents this question only: Do the facts alleged in the complaint constitute a cause of action for alimony without divorce ? The court below ruled that it does state such cause of action, and this Court, testing the allegations of the complaint by pertinent portions of G. S., 50-16, and by decisions in the cases of Brooks v. Brooks, 226 N. C., 280, 37 S. E. (2d), 909, and Best v. Best, 228 N. C., 9, 44 S. E. (2d), 214, is in agreement with that ruling. The statute, G. S., 50-16, provides *198 in pertinent part that if any husband shall separate himself from his wife and fail to provide her with necessary subsistence according to his means and condition in life, the wife may institute an action in the Superior Court of the county in which the cause of action arose to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband, and that pending the trial the wife may make application to a specified judge for an allowance for such subsistence and counsel fees pendente lite. The essential elements required to be alleged in cases under this provision of the statute are (1) separation of the husband from his wife, and (2) his failure to provide her with the necessary subsistence according to his means and condition in life. These are alleged in the complaint in the present action. However defendant contends that the complaint is fatally defective for the further reason that the acts of defendant of which plaintiff complains are not stated with definiteness and particularity. The principle of law on which this contention is made is inapplicable to the state of facts here alleged. Hence the cases Garsed v. Garsed, 170 N. C., 672, 87 S. E., 45; Pollard v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1; and Lawrence v. Lawrence, 226 N. C., 624, 39 S. E. (2d), 807, upon which the defendant relies in this connection, are distinguishable. Defendant also contends that there is an absence of allegation in the complaint that the conduct of the defendant was without provocation on her part. This contention is likewise without merit. It is alleged in the complaint that the separation of defendant from plaintiff was “without fault or misconduct on the part of the plaintiff.” This would seem sufficient to meet this objection. The judgment below is Affirmed.