From Casetext: Smarter Legal Research

Briggs v. Briggs

Supreme Court of North Carolina
Nov 1, 1951
234 N.C. 450 (N.C. 1951)

Opinion

Filed 7 November, 1951.

1. Appeal and Error 40d — The findings of fact of the lower court are conclusive on appeal when supported by evidence.

2. Divorce and Alimony 12 — In the absence of proof of any ground for divorce either a vinculo or a mensa, the court correctly denies motion for alimony pendente lite.

3. Same — Upon denial of motion for alimony pendente lite for want of proof of a cause for divorce either a vinculo or a mensa, the court has no authority to dismiss the action as in case of nonsuit, since the cause is not before the court on final hearing on the merits.

APPEAL by plaintiff from Morris, J., June Term, 1951, LENOIR. Modified and affirmed.

Jones, Reed Griffin for plaintiff appellant.

Whitaker Jeffress for defendant appellee.


Civil action for alimony without divorce and for counsel fees, heard on motion for an allowance pendente lite.


The court below, after hearing the evidence, made full findings of fact. The facts found are supported by the evidence offered and are binding on us. Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, and cases cited.

On the facts found the court correctly concluded that the plaintiff has failed to make out any cause for divorce, either a vinculo or a mensa.

The existence of grounds for divorce is a prerequisite to any allowance to the wife under G.S. 50-16. To warrant an allowance pendente lite she must allege and prove a cause of action for divorce. Cameron v. Cameron, 231 N.C. 123, 56 S.E.2d 384. In the absence of such proof, the court below properly denied her motion. Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, and cases cited; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919.

But the cause was heard on motion for subsistence and counsel fees pendente lite. It was not before the court on final hearing on the merits. Hence the court was without jurisdiction to dismiss the action as in case of nonsuit. To this extent the order entered must be modified. As so modified the judgment is affirmed.

Modified and affirmed.


Summaries of

Briggs v. Briggs

Supreme Court of North Carolina
Nov 1, 1951
234 N.C. 450 (N.C. 1951)
Case details for

Briggs v. Briggs

Case Details

Full title:GRACE BRIGGS v. BEN MEEKS BRIGGS

Court:Supreme Court of North Carolina

Date published: Nov 1, 1951

Citations

234 N.C. 450 (N.C. 1951)
67 S.E.2d 349

Citing Cases

Williams v. Williams

Facts found by the judge are binding upon this court if they are supported by any competent evidence…

Wells v. Wells

Accordingly, and particularly in view of the lack of notice and other circumstances discussed above, we…