#### BERTIE BYERLY v. M. A. BYERLY.

(Filed 9 November, 1927.)

Divorce — Statutes—Abandonment—Appeal and Error — Judgments—Presumptions — Alimony—Counsel Pees.

Where in an action by the wife under C. S., 1667, and amendments thereto, she has duly moved the court for alimony *pendente lite*and an allowance for counsel fees, and the husband has answered and offered evidence to the effect that the plaintiff had abandoned him, and that he had not abandoned her, and the record on appeal does not disclose any findings of fact upon the question but only that the trial judge had refused the plaintiff’s motion until the jury should determine the issue, the presumption is that the trial judge had held adversely to the plaintiff as to the fact.

Appeal by plaintiff from *Shaw, J.,*at September Term, 1927, of DavidsoN.

Affirmed.

This is an action brought by plaintiff against defendant, her husband, under C. S., 1667. A motion was made *pendente lite,*upon notice duly served on defendant, that reasonable subsistence and counsel fees be allowed her and her attorneys until final determination of the action. After hearing the complaint, answer, reply and affidavits, the court below denied the motion until the facts are heard and determined at the trial. Plaintiff excepted, assigned error and appealed to the Supreme Court.

*Phillips & Bowers and Walser & Walser for plaintiff.*

*Spruill & Olive for defendant.*

Pee Cubiam.

C. S., 1667, in part, is as follows: “If any husband • shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, . . . and it shall be lawful for such judge to cause the husband to secure so much of his estate or to pay so much of his earnings, or both, as may be proper,” etc. This section was amended by Public Laws 1921, ch. 123, as follows: “That section one thousand six hundred and sixty-seven (1667) of Consolidated Statutes of North Carolina be amended by inserting in line seven (7), between the words ‘subsistence’ and ‘allotted’ the words ‘and counsel fees’; and by inserting in line twelve between the words ‘subsistence’ and ‘and’ the words ‘counsel fees’: *Provided,*this act shall not apply in any way to pending litigation.”

Further amended by Public Laws 1923, ch. 52: “That section one thousand six hundred and sixty-seven of the Consolidated Statutes be *533amended by adding at tbe end of said section tbe following: *‘Provided,*tbat in all applications for alimony under tbis section it shall be competent for tbe busband to’ plead tbe adultery of tbe wife in bar of ber right to such alimony, and if tbe wife shall deny such plea, and tbe issue be found against ber by tbe judge, be shall make no order allowing ber any sum whatever as alimony, or for ber support, but only ber reasonable counsel fees.’ ”

Tbe defendant denied tbat be bad abandoned or separated himself from bis wife, but on tbe contrary charged tbat she bad abandoned and separated herself from him. There is no necessity to rehearse tbe evidence. It is an unfortunate domestic trouble and a repetition of tbe differences between tbe busband and wife is edifying to no one. Tbe court below found no facts. Tbe presumption is tbat be based tbe judgment on tbe fact tbat plaintiff abandoned and separated herself from tbe defendant, and defendant did not abandon and separate himself from plaintiff.

C. S., 1667, *supra,*and tbe amendments do not contemplate tbat a wife who wrongfully abandons and separates herself from ber busband should be awarded subsistence and counsel fees. See *Allen v. Allen,*180 N. C., 465; *Price v. Price,*188 N. C., 640; *McManus v. McManus,*191 N. C., 740. Tbe judgment below is

Affirmed.