(Filed 20 November, 1935.)
Divorce E a —
Where, in a wife's suit to set aside a deed of separation for fraud and for divorce a mensa, the trial court finds that the allegations of the complaint are true and that the wife is without means to prosecute the suit and is without means of subsistence, the findings warrant the granting of alimony pendente lite.
APPEAL by defendant from an order of Williams, J., making certain allowances to the plaintiff pendente lite.
Charles P. Green and Yarborough Yarborough for plaintiff.
Albert Doub and Thomas W. Ruffin for defendant.
The plaintiff brought her action in the Superior Court of Franklin County to set aside for fraud a separation agreement entered into between herself and her husband, the defendant, and for divorce a mensa. Pending the action, she moved for an allowance to herself and for counsel fees, alleging inability to support herself.
Defendant denied the fraud, set up the separation agreement and payments to the plaintiff under the terms thereof, and resisted the motion.
Numerous affidavits were filed on both sides. After considering the pleadings and the affidavits, the court below signed the order making allowances to plaintiff and her counsel, from which order defendant appealed.
The court below found that the facts set forth in the complaint were true, that the plaintiff had not sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary and proper expenses thereof, and thereupon made the order from which defendant appealed.
These findings of fact warrant the making of an allowance, and the amount does not appear unreasonable or excessive.