#### GERTRUDE WATERS BROOKS v. CLAUDE M. BROOKS.

(Filed 1 May, 1946.)

1. Divorce § 14—

Where a complaint alleges certain acts of misconduct constituting bases for divorce, both absolute and from bed and board, with prayer for relief demanding subsistence for the plaintiff and the minor child of the marriage, and for such other relief as may be just and proper, without prayer for divorce, the cause is an action for alimony without divorce under G. S., 50-16.

2. Same—

In an action for alimony without divorce under G. S., 50-16, there is available to the wife not only the grounds specifically set forth in the statute; b.ut also any ground that would constitute cause for divorce from bed and board under G. S., 50-7, or cause for absolute divorce under G. S., 50-5.

3. Divorce § 5c—

In an action for divorce from bed and board under G. S., 50-7, it is necessary that the complaint allege that any of the acts of misconduct 'constituting the basis of the action were without adequate provocation on the part of plaintiff.

4. Divorce § 5b—

In an action for absolute divorce on the ground of adultery it is not required that the complaint allege that the misconduct was without adequate provocation.

5. Divorce § 14—

Where, in an action for alimony without divorce under G. S., 50-16. the complaint alleges adultery and also sets forth acts of misconduct constituting a basis for divorce from bed and board, the failure of the complaint to allege that the misconduct was without adequate provocation is not fatal, since such allegation is not necessary in an action for absolute divorce on the ground of adultery, and this ground, independently, is sufficient to sustain the action for alimony without divorce.

*2816. Divorce §§ lc, 14—

In an action for alimony without divorce the allegation of adultery forming a basis for the relief sought cannot be held fatally defective on the ground that it sets forth facts amounting to condonation when the complaint also alleges acts of misconduct committed by defendant after the reconciliation which revive the old grounds.

7. Divorce § 12—

The complaint in this action is held to state a cause of action for alimony without divorce'under G. S., 50-16, and therefore was sufficient basis for the order allowing alimony *pendente lite.*

8. Divorce § 14—

In this action for alimony without divorce plaintiff set forth in the complaint that she had theretofore instituted an action for subsistence in which an order had been made, hut that plaintiff secured the dismissal of this suit after defendant had begged forgiveness and promised to mend his ways. *Held:*The court was without jurisdiction to incorporate into the allowance granted plaintiff the amount supposedly due under the prior order, both because of the vagueness of the reference to the prior order in the complaint and also because of the fact that the prior action had been dismissed.

Appeal by defendant from *Grady, Emergency Judge,*at September Term, 1945, of Wake.

The plaintiff brought this ease under G. S., 50-16, for alimony without divorce.

She complains that she and the defendant were married about twenty years before the commencement of the action, and that during that time and “throughout the married life of the plaintiff and the defendant the plaintiff has been a true, faithful and dutiful wife, and has done everything within her power to make her marriage to the defendant a success and to make their home a happy one.”

Two daughters were born to the marriage, themselves now married to soldiers still in the service. The daughters were until recently inmates of the home of their father and mother. There is also a minor son.

During this time the plaintiff alleges that from a very modest beginning she had, by her own personal efforts and attention, largely.contributed to the success of the defendant’s business, which has been built up into an extensive enterprise, in which the defendant has become prosperous; that during the last sixteen years the defendant had become addicted to excessive drinking, gradually becoming more and more subject to intoxication, and drinking to excess on numerous occasions; that he had begun and gradually intensified his misconduct towards plaintiff, abusing her and his daughters, ordering the latter to leave his home; and openly declared that he intended to make things so hard for plaintiff *282and make ber life so miserable tbat sbe would be forced to leave ber borne.

Tbat be has become more and more violent in bis conduct to tbe plaintiff, on one occasion locking ber up in tbe room and knocking ber to tbe floor, seriously injuring ber; and tbat plaintiff lay there until ber daughters, bearing ber screams, rushed down and broke open tbe locked door and found plaintiff prostrate on tbe floor.

The plaintiff further alleges in *her*complaint, partly on information and belief and partly of ber own knowledge, tbat tbe defendant bad on numerous occasions and with numerous women, been unfaithful to bis marriage vows and has wasted and squandered large sums of money in bis illicit association with lewd women. The plaintiff in particular names one Mrs. Alice Cox as a person with whom be bad illicit relations, and particularizes tbe incidents relating thereto, some of which came under ber observation. On one occasion plaintiff alleges tbat sbe and ber daughters came upon tbe defendant in a parked car in a dark place on South McDowell Street with Mrs. Cox'. At tbat time, sbe alleges, sbe asked tbe defendant to go borne with ber, but be elected to remain with Mrs. Cox. Tbe plaintiff, unable to further tolerate or bear tbe misconduct of the defendant, instituted a suit against *him*for subsistence and support, in which an order was made, but tbat tbe defendant came to plaintiff, expressed bis regret for bis past misconduct, begged ber to forgive him and promised not to mistreat ber again, to stop bis excessive drinking, and bis illicit association with other women, and for tbat reason sbe secured tbe dismissal of tbe pending case.

Thereafter, tbe plaintiff found tbat tbe promises were insincere and fraudulent, and tbe defendant openly boasted tbat there was nothing sbe could now do to force him to support ber. After this there were further indignities heaped upon tbe plaintiff; and tbe barbarous and cruel treatment of her at tbe bands of ber husband, sbe alleges, have endangered ber life, and avers tbat because of tbe violence and misconduct of tbe defendant, if sbe is left alone at bis mercy ber life will be in danger.

Wherefore, sbe petitions for tbe allowance of support *pendente lite*and for counsel fees in this proceeding.

Tbe defendant denies tbe material allegations of tbe complaint, sets up condonation on tbe part of tbe plaintiff, and asks for dismissal of tbe suit. He further alleges tbat tbe plaintiff was addicted to tbe use of intoxicating liquors, and while under tbe influence of an intoxicant became angry with tbe defendant, in which sbe was encouraged by ber two daughters; and attributes tbe domestic difficulties, such as they are, to this cause.

At a regular term of Wake County Superior Court tbe petition of tbe defendant for alimony *pendente lite*and counsel fees came on for a bear*283ing before Judge Grady in chambers. Tbe plaintiff was beard upon affidavits, and tbe defendant presented no evidence.

Judge Grady made an order based upon tbe facts as tbey appeared to bim, expressing tbe bope therein that a reconciliation between tbe two might be effected and that tbe domestic life of tbe two might be free from interference on tbe part of tbe daughters.

Tbe order provides that tbe defendant pay into the office of tbe clerk of tbe court for tbe use and benefit of the plaintiff $40.00 on each Monday, beginning with 8 October, 1945, and that these payments continue until tbe order is modified by tbe court; that be pay to tbe clerk for tbe use and benefit of plaintiff’s counsel tbe sum of $100.00. Tbe order further provides that tbe defendant shall pay all sums due under tbe order of 2 October, 1944, which was referred to in plaintiff’s complaint as having been made in tbe former proceeding, dismissed at tbe instance of tbe plaintiff.

From this order tbe defendant appealed, and subsequently filed with tbe court a grouping of exceptions and assignment of error, substantially as follows :

That tbe complaint does not state-facts sufficient to constitute a cause of action; first, in that there are not sufficient grounds alleged to sustain a divorce from bed and board, and an order for tbe payment of alimony could not be based thereon; and that tbe complaint contains no allegation with respect to plaintiff’s own conduct, which omission it is contended rendered tbe complaint fatally defective; second, that tbe court found as a fact that tbe conduct of defendant bad been condoned by plaintiff “with tbe exception of certain things which have occurred rather recently,” whereas there is no allegation of those things “occurring rather recently”; and third, that there is no allegation in tbe complaint upon which tbe order for payment of sums due under “tbe order of October 2, 1944,” could be based.

*Burgess ■& Baker and Thomas W. Ruffin for plaintiff, appellee.*

*Douglass & Douglass for defendant, appellant.*

Sea well, J.

Tbe appeal challenges tbe validity of tbe order allowing to tbe plaintiff support and counsel fees *pendente lite.*Objection is advanced on tbe theory that tbe action is brought under and based entirely on G. S., 50-7 (4) — a subsection of tbe statute relating to divorce from bed and board, which names as one of tbe grounds for such divorce “such indignities to tbe person of tbe other as tp render bis or her condition intolerable and life burdensome.” It is pointed out as a fatal defect in tbe pleading that plaintiff does not, in particularizing tbe acts or misconduct of tbe defendant said to have bad that effect further allege *284that the conduct was without adequate provocation on her part, *ergo*fails to state a cause of action. If plaintiff’s action, or rather her grounds for relief, can be put into that category, ignoring all other available statutory grounds for relief, the established standards of pleading and practice, as found in our decisions, might support appellant’s view. *McManus v. McManus,*191 N. C., 740, 133 S. E., 9; *Pearce v. Pearce,*225 N. C., 572, 35 S. E. (2d), 636; *Howell v. Howell,*223 N. C., 62, 25 S. E. (2d), 169; *Pollard v. Pollard,*221 N. C., 46, 19 S. E. (2d), 1; *Carnes v. Carnes,*204 N. C., 636, 169 S. E., 222; *O'Connor v. O'Connor,*109 N. C., 139, 13 S. E., 887; *Jackson v. Jackson,*105 N. C., 433, 11 S. E., 173. But we do not concede that the major premise is sound: The statute, G. S., 50-16, relating to alimony without divorce, and plaintiff’s pleading of the grounds therein recognized as cause for the relief sought are both broader than that assumption implies.

Since the plaintiff does not ask for divorce, but merely adds to the prayer a request for “such other and further relief as might appear just and proper,” the court will refer the proceeding to G. S., 50-16, as an action for alimony without divorce, as was no doubt intended. *We*quote the pertinent part of that action, italicizing the phrase which appellant’s counsel contend ties in the proceeding with an action for divorce *a mensa*under G. S., 50-7, and especially with subsection 4 of that law as above stated:

> “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, or if he shall be a drunkard or spendthrift, *or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board,*the wife may institute an action in the superior court of the county in which the cause of action arose to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.”

It will appear, then, that there is available to the wife in an action for alimony without divorce not only the grounds independently stated in the quoted statute, but, by inclusive reference, any ground that would constitute cause of divorce, either absolute or from bed and board.

In lodging his objection appellant might have said, with strict accuracy, that the rule suggested has been applied to most of the other grounds for divorce *a mensa*named in the statute with the practical effect that the grounds borrowed from the statute relating to divorce from bed and board cannot be successfully asserted without the corresponding denial of adequate provocation; even extending to abandonment, which imports *willfullness,*and *maliciously*turning the spouse out of doors, and *cruel*and *barbarous*treatment endangering life; as to all of which the *285excuse of “adequate provocation.” is somewhat remote. *McManus v. McManus, supra;*McIntosh, Civil Procedure, p. 407.

Referring more especially to subsection 4, relating to indignities to the person, the origin and propriety of requiring allegation and proof that there was no adequate provocation rests in the difficulty of defining more precisely the acts which might come under condemnation of the law, coupled with the deference traditionally shown to the necessity of mutual forbearance in the marital venture. In a measure, the device controls the extent to which the law is willing to invade that field with judicial remedies, resulting in separation. For extension of the rule to other more specifically defined conduct, we must refer to the history, rather than the logic, of the law. But there are less relative acts of the husband upon which alimony without divorce may be granted, stated as violations of positive requirements which, as we view them in the light of the decided cases, do not suggest the necessity of applying the principle of domestic balances. It is not necessary to couple the allegation of such misconduct with a denial of provocation. Such, at least, is adultery. The statute also mentions independently as grounds for alimony that the husband is a spendthrift or a drunkard; and there is a substantial difference between G. S., 50-16, and G. S., 50-7 (5), in phraseology and implication as to drunkenness.

The complaint is somewhat informal, and the incidents alleged as grounds for relief mainly fall under G. S., 50-7 (4), as indignities to the person, or other subsections of the statute relating to divorce from bed and board; and many of these allegations are defective, as.contended for by the appellant, in failing to comply with the above mentioned rule; but not all of the allegations of the complaint are affected with this invalidity. In alleging that the defendant had illicit relations with numerous lewd women, and especially with Alice Oox, there is a sufficient charge of adultery. The complaint also charges that he has become addicted to drunkenness, and that he has wasted large sums of money upon the subjects of his amours. We refrain from pushing through the mill of definition the terms used in the statute — “drunkard” and “spendthrift” — and comparing them with the allegations of the complaint, and we make no decision with respect to them. However, upon the analysis we have given, we are of opinion that the complaint does state a cause of action, and so hold. The practical result of its partial invalidity would be that the plaintiff on the trial, and upon timely objection, cannot, without amendment, rely on the causes of action pointed out, which have been heretofore held by numerous decisions of this Court to be fatally defective.

The question of condonation cannot be determined adversely to the complaint as a matter of law, since there is sufficient allegation of con*286duct which might revive the old grounds for relief, whatever they are. *Lassiter v. Lassiter,*92 N. C., 130; *Jones v. Jones,*173 N. C., 279, 91 S. E., 960; *Page v. Page,*167 N. C., 346, 347, 83 S. E., 625; *Gordon v. Gordon,*88 N. C., 45; *Collier v. Collier,*16 N. C., 352.

We conclude that the order *for*alimony and counsel fees *pendente lite,*having been made in a valid proceeding, is valid and binding upon the defendant; subject, however, to the modification hereinafter made.

We are of opinion that the order of the judge requiring the defendant to pay sums supposed to be due under the previous order dated 2 October, 1944, in the action previously dismissed, was, inadvertently we are sure, beyond his jurisdiction, both because of the vagueness of the reference in the complaint and because of the dismissal of that action before final judgment.

As thus modified, the judgment is affirmed.

Modified and affirmed.