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Privette v. Privette
Citations: 227 S.E.2d 137; 30 N.C. App. 305; 1976 N.C. App. LEXIS 2243Docket: 7626DC245
Court: Court of Appeals of North Carolina; August 4, 1976; North Carolina; State Appellate Court
Defendant contended that the trial court erred by denying his motion to dismiss, arguing that the plaintiff had condoned his actions. The court rejected this claim, noting the plaintiff's testimony indicating no sexual relations since June 1974, despite living together, which negated any assumption of condonation. The court referenced legal standards and precedent, stating that patient endurance of unkind treatment should not undermine a spouse's right to seek relief. The defendant bore the burden of proving condonation, which he failed to do. Additionally, the defendant argued that the trial court did not make sufficient findings regarding alimony pendente lite, custody, and child support. The court found that the defendant was self-employed and had a net profit of approximately $1,391 for a nine-week period in 1975, while the plaintiff was unemployed but had previous earnings as a nursery teacher. The court classified the plaintiff as a dependent spouse and the defendant as the supporting spouse, confirming that both the plaintiff and their minor child relied on the defendant for maintenance. In custody matters, the court determined that while both parents were fit to care for their child, it was in the child's best interest to be placed in the exclusive custody of the plaintiff. The defendant was granted reasonable visitation rights. However, the court denied the plaintiff's request for counsel fees, citing her inability to cover the costs of the action. The Court determined that the Defendant possesses sufficient earnings or assets to provide reasonable alimony pendente lite and child support. The Defendant is ordered to pay $175 monthly for child support and $125 monthly for alimony pendente lite. Additionally, the Plaintiff and child are granted use of one of the properties owned jointly by the Plaintiff and Defendant, and the Plaintiff is awarded exclusive use of one of the Defendant's vehicles. The Court denied the Plaintiff's request for counsel fees. The Defendant's objections regarding alimony pendente lite were deemed without merit, referencing relevant case law. However, the Court acknowledged that the findings related to custody and child support were inadequate, necessitating a new hearing to establish proper findings and conclusions. Consequently, the trial court's order is affirmed in part and reversed in part. Judges Vaughn and Clark concur.