In Re Marriage of Brown

Opinion

FLEMING, J.

Bernice Brown appeals an interlocutory judgment of dissolution of her marriage to Leroy Brown. She contends the trial court

[190]

erred in refusing to grant her a continuance and in finding that there was no community property,

Bernice and Leroy were married in South Carolina in 1944, they had four children, and they separated in 1960. Leroy petitioned for dissolution of their marriage on 17 June 1970. He alleged that there was no property subject to disposition by the court and that the children were grown. He requested that no spousal support be awarded. Bernice responded on 31 August 1970, alleging that Leroy’s military retirement benefits were subject to disposition by the court. She requested custody of the children, child and spousal support, determination of her property rights, and attorneys’ fees and costs. Trial was set for 14 May 1971.

On the day set for trial, Bernice moved for a continuance. Her attorney submitted an affidavit alleging as follows: He was “assigned” the case on 7 May 1971. On 12 May 1971 he was informed that Bernice was in Charlotte, North Carolina, and did not have the necessary funds to make the trip to California. Bernice’s testimony was essential to her cause because she would testify that she had raised the children; that in August 1963 she prepared to move with the children from North Carolina to Port Hueneme, California, where Leroy was stationed; that she shipped all the family furniture and clothes to Port Hueneme; that her sister in North Carolina became ill and she notified Leroy she could, not come; that Leroy said if she did not come now §he should not come at all, and he later disposed of all the furniture and clothes. Bernice would further testify that she received a monthly military allotment check for $160 from 1951 to July 1970; that she has a part-time job at a college day-care center at $85 a month; that she acts as a foster mother for six children for $191 a month; and that she is without funds to travel to California.

The trial court denied Bernice’s motion for a continuance. At trial Leroy testified that there are irreconcilable differences between him and Bernice. They have been separated for 10 years. He is in the Navy and has take-home pay of slightly more than $320 a month. He was transferred to California in 1963. He brought the household, furnishings to California with the understanding that Bernice was coming to see him, but she did not. Leroy put the furnishings in storage, and eventually they were sold to pay storage fees. Bernice now attends college in North Carolina. Their children are grown. Bernice had custody of the children, but Leroy paid for their support. Until July 1970, when the last child was emancipated, Leroy had the Navy send a $160 monthly allotment to Bernice. Leroy has been in the Navy for 26 years; he is eligible to retire but has not done so.