#### EDITH HARRELL OLLIS v. LAWRENCE LAMEN OLLIS.

(Filed 23 March, 1955.)

1. Divorce and Alimony § 5d—

In an action for alimony without divorce, allegations that the husband had been abusive and violent toward plaintiff and she had been made to fear for her safety, are insufficient, it being necessary that plaintiff allege specific acts of misconduct on the part of the husband so that the court may determine whether his conduct was in fact such as constituted cause for divorce from bed and board, and also specify what, if anything, she did or said at the time, in order that the court may determine whether she provoked the difficulty. G.S. 50-16.

*2.*Same—

Allegations that during the 12 months preceding the institution of the action defendant had repeatedly told plaintiff to leave the home in which •they were living, are insufficient to allege a cause of action that defendant maliciously turned plaintiff out of doors as a basis for an action for alimony without divorce under G.S. 50-16.

3. Same—

Allegations that the defendant spent money lavishly on other women, without allegation as to who they were or what was their relationship to defendant, if any, and without allegation of misconduct on' the part of defendant, is insufficient to state a cause of action for divorce as a basis for alimony without divorce under G.S. 50-16.

4. Same—

Allegations that defendant failed .to provide adequate support for the plaintiff and the child of the marriage, without allegations of specific acts and conduct on his part sufficient .to justify her leaving him as she admitted she had done, and without allegation of the amount of support defendant provided or what other means he had or what she deemed “adequate support,” are insufficient to allege that he separated himself from her and the child without providing them adequate support - according to his means and condition in life, as a basis for alimony without divorce.

Babnhill, C. J., and Devin, J., took no part in the consideration or decision of this case.

*710Appeal by defendant from *Parker, J.,*at Chambers, 11 September, 1954, VaNce.

This is a civil action for alimony without divorce and for counsel fees brought by the plaintiff under G.S. 50-16. The plaintiff alleges in substance:

(1) The parties are residents of North Carolina.

(2) The parties were married on 7 September, 1935; one child, Dixie Ann Ollis, now 17, was born of the marriage.

(3) The plaintiff at all times since the marriage has been a faithful and dutiful wife.

(4) The defendant has become abusive and violent to the plaintiff to the extent hr life has become intolerable and she is unable to live with him; that m has been made to fear for her bodily safety to the extent it has b'come necessary for her to live separate and apart from the defend r nt.

(5' The plaintiff has frequently remonstrated with the defendant abr at his violent and abusive attitude toward her, but without effect on bim.

(6) The defendant, during the preceding 12 months has repeatedly told plaintiff to leave the home in which they were living, which he had no right to do; the defendant began spending a great deal of time away from home and on one occasion was gone for 11 days without informing the plaintiff and his child of his whereabouts, which caused them great anxiety.

(7) The plaintiff is advised and believes the defendant spends money lavishly on other women and is now supporting a woman other than this plaintiff.

(8) The defendant has failed to provide adequate support for plaintiff and Dixie Ann.

(9) The plaintiff on 13 March, 1954, because of abuse and other indignities, left the home and returned to her home in Florence, South Carolina, where she left Dixie Ann and returned to North Carolina in order to bring this action.

(10) The defendant is able-bodied and capable of earning money. He operates a store and filling station and he has sufficient income to support plaintiff and Dixie Ann.

(11) The plaintiff is without means of support and without money to employ counsel.

The defendant filed a demurrer upon the ground, (1) the complaint fails to state a cause of action; (2) the plaintiff fails to set forth in detail and minuteness the circumstances of the alleged acts of cruelty on the part of the defendant and that the acts charged are set forth in general terms and do not state facts specifically and with particularity; (3) the *711plaintiff bas failed to aver tbat tbe alleged acts of cruelty on tbe part of defendant were without adequate provocation on ber part and to state wbat ber conduct was at tbe time of tbe alleged acts; (4) tbat tbe plaintiff does not aver tbat ber conduct did not contribute to tbe wrongs and abuses of wbicb sbe complains.

From an order of tbe Superior Court Judge overruling tbe demurrer, tbe defendant appealed.

*Ho counsel, contra.*

*John Kerr, Jr., for defendant, appellant.*

Higgins, J.

In *Best v. Best,*228 N.C. 9, 44 S.E. 2d 214, *Justice Winborne*sets out tbe allegations necessary in an action under G.S. 50-16, as follows: “When a wife bases ber action for alimony without divorce upon tbe ground tbat ber husband bas been guilty of cruel treatment of ber and of offering indignities to ber person within tbe meaning of tbe statute pertaining to divorce from bed and board, G.S. 50-1 (3) and (4), sbe ‘must meet tbe requisite’ of this statute, *Pollard v. Pollard,*221 N.C. 46, 19 S.E. 2d 1, and not only set out with particularity tbe acts on tbe part of ber husband and upon wbicb she relies, but sbe is also required to allege, and consequently to prove, tbat such acts were without adequate provocation on her part.”

In tbe case of *Howell v. Howell,*223 N.C. 62, 65 S.E. 2d 169, *Justice Denny*states tbe following as tbe rule: “In an action for alimony without divorce (C.S. 1661, now G.S. 50-16), as in an action for divorce *a mensa et thoro*by the wife, she must not only set out with some particularity tbe acts of cruelty upon tbe part of tbe husband, but sbe must aver, and consequently offer proof, tbat such acts were without adequate provocation upon ber part. . . . Tbe omission of such allegation is fatal.”

It is not enough for tbe wife to allege tbe husband has been abusive and violent toward ber, tbat she bas been made to fear for ber safety. Sbe must go further and allege specific acts and conduct on tbe part of tbe husband so tbat tbe court may see tbat bis conduct was in fact such as constituted a cause for divorce from bed and board. Not only must tbe wife specify tbe acts and conduct of tbe husband, but also sbe must set forth wbat, if anything sbe did to start or feed tbe fire of discord so tbat tbe court may determine whether sbe provoked tbe difficulty.

Tbe plaintiff alleges “tbat tbe said defendant during tbe preceding 12 months bas repeatedly told tbe plaintiff to leave the borne in wbicb they were both living.” There is no allegation tbe plaintiff left or tbat tbe husband’s statement amounted to more than a request tbat sbe do so. Tbe complaint is likewise silent as to wbat tbe plaintiff did or said at tbe times tbe husband told ber to leave. To be ground for divorce *a mensa*
      *712
      *et tlvoro,*and consequently basis for the plaintiff’s action under G.S. 50-16, the plaintiff must show that the defendant “maliciously turned her out of doors.”

The plaintiff, on information and belief, charges also the defendant spent money lavishly on other women. She does not allege who they were, what their relationship, if any, to the defendant was, nor does she suggest any misconduct on the part of the defendant.

The plaintiff alleges defendant failed to provide adequate support for her and Dixie Ann. If treated as a second cause of action *(Oldham v. Oldham,*225 N.C. 476, 35 S.E. 2d 332), the complaint fails to state a cause of action. She admits in her complaint that she left the defendant. She does not allege specific acts and conduct on his part sufficient to justify her leaving. She does not allege the amount of support the defendant provided or what means he had, or what she deemed “adequate support.” The statute provides: *“If any husband shall separate himself from his wife*and shall fail to provide her and the children of the marriage *with the necessary subsistence according to his means and condition in life,”*she may maintain an action for alimony without divorce. (Emphasis added.)

The complaint in this action is deficient in that it fails to allege any ground for divorce, either absolute or from bed and board. It also fails to allege the husband has separated himself from his wife and failed to provide her and the child of the marriage with the necessary subsistence according to his means and condition in life. *Brooks v. Brooks,*226 N.C. 280, 37 S.E. 2d 909; *Carnes v. Carnes,*204 N.C. 636, 169 S.E. 222; *Dowdy v. Dowdy,*154 N.C. 556, 70 S.E. 917; *Jackson v. Jackson,*105 N.C. 433, 11 S.E. 173; *White v. White,*84 N.C. 340.

The demurrer should have been sustained. The order for alimony and counsel fees is vacated.

Reversed.

BaeNhill, C. J., and DeviN, J., took no part in the consideration or decision of this case.