Bailey v. Bailey

• Decision Date: 13 January 1956
• Docket Number: No. 741,741
• Citation: 243 N.C. 412,90 S.E.2d 696
• Parties: Essie Stone BAILEY v. George R. BAILEY.
• Court: North Carolina Supreme Court

Page 696

90 S.E.2d 696

243 N.C. 412

Essie Stone BAILEY v. George R. BAILEY.

No. 741

Supreme Court of North Carolina.

Jan. 13, 1956

John A. Robertson, Stanley L. Seligson, Raleigh, Gavin, Jackson & Gavin, Sanford, for defendant-appellant.

Barber & Thompson, Pittsboro, for plaintiff-appellee.

PARKER, Justice.

The defendant assigns as errors the judge's findings of fact numbered 3, 4, 5 and 7, his failure to find the facts as contended by the defendant, and the signing of the order.

This Court said in Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53: 'The exception to the judgment entered presents for decision only two questions: (1) Do the facts found support the judgment, and (2) does any error of law appear upon the face of the record?'

At the time of their marriage on 15 November 1947, the plaintiff was a widow with five married children, and the defendant a widower with eight married children, and three minor children living with him.

The judge found these facts material for decision here, which are supported by competent evidence: (1) The existence of a valid marriage between the parties, and a living together as husband and wife, except for a year's separation in 1952-1953, until 21 May 1954. (2) The defendant has offered such indignities to the person of the plaintiff as to render her condition intolerable and her life burdensome, in that for several years, and particularly for several months prior to 21 May 1954, he has permitted, encouraged and condoned certain of his grown and married children to remain constantly at the home in which plaintiff and defendant lived, in a drunken condition, and to curse, abuse and harass plaintiff at all hours of the day and night. (3) On 21 May 1954 defendant ordered plaintiff to get her things out of his house, and on the same date he abandoned her, and has failed to provide her with any subsistence and support. (4) The indignities offered to the plaintiff by the defendant, and his abandonment of her, were without any fault or provocation on her part. (5) The plaintiff does not have sufficient means upon which to subsist during the pendency of this action, nor to defray the necessary expenses thereof. (6) The defendant has real property listed on the tax books of Wake County at a valuation of $32,461, and a rental income of $800 a month. The numbering here is ours.

The judge's findings of fact, except as to the tax valuation of defendant's realty, are based upon allegations of plaintiff's complaint and of her reply to defendant's answer, which were used as affidavits. The judge found as a fact that on 21 May 1954 the defendant ordered the plaintiff to get her things out of his house. This finding of fact is based upon this allegation in paragraph 10 of plaintiff's complaint: 'On May 21, 1954 the defendant stated to the plaintiff that he wanted her to get her things out of his house (certain furnishings that she had there) in that he wanted the room in which same were kept, so that he could have another room for the use of his children'; and upon this allegation in paragraph 16 of plaintiff's reply: 'The defendant told the plaintiff to move the furniture out of the house (not to another room, but to get it completely out of the house), in that he wanted the room to use for some of his children while they were in the house.' The difference between the finding that the defendant ordered the plaintiff to get her things out of his house, and the evidence that the defendant told plaintiff to move her things out of the house, we do not consider a material difference.

'If any husband * * * 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 for alimony without divorce. G.S. § 50-16; Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909. 'If either party abandons his or her family', it is a ground for divorce from bed and board. G.S. § 50-7, subd. 1; Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R.2d 436.

Denny, J., said for the Court in Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919, 920: 'It is unnecessary for a husband to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him. This, under our decisions, would constitute abandonment by the husband.'

We have held in Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904; Green v. Green, 131 N.C. 533, 42 S.E. 954; and in Coble v. Coble, 55 N.C. 392, that where a divorce a mensa et thoro is sought under G.S. § 50-7, subd. 4, on the ground that the defendant offers such indignities to the person of the plaintiff as to render his or her condition intolerable and life burdensome, allegations of actual physical violence are not required. We think the same principle applies when a divorce a mensa et thoro is sought under G.S. § 50-7, subd. 1, on the ground of abandonment, and that a husband may compel his wife to leave him by cruel treatment without the actual physical infliction of violence upon her person. See: Ringgold v. Ringgold, 128 Va. 485, 104 S.E. 836, 12 A.L.R. 1383.

It would be impossible, and also unwise, to attempt to define with accuracy, so as to fit all cases, what is cruel treatment by a husband that compels his wife to leave him. There is a species of cruelty, which cuts deeper than a blow, and that is the weakening of a husband's love and affection through the disparagement, cursing and abuse of his wife by his grown children by a former marriage, and which, when not resented by him, but permitted or encouraged, are bound to destroy the happiness of the home, and tend to impair the health and self-respect of the wife. The judge here has...