Barwick v. Barwick

• Decision Date: 29 October 1947
• Docket Number: 308
• Parties: BARWICK v. BARWICK.
• Court: North Carolina Supreme Court

44 S.E.2d 597

228 N.C. 109

BARWICK v. BARWICK.

No. 308

Supreme Court of North Carolina

October 29, 1947

Action for alimony without divorce. Plaintiff and defendant were married December 24, 1940. The plaintiff seeks an allowance for her subsistence, for the support of the minor child born of said marriage, and for her attorneys' fees.

From an order granting the plaintiff an allowance pendente lite for subsistence for herself and child, and for counsel fees, the defendant appeals assigning error.

R. E Whitehurst, of Newbern, and J. A. Jones, of Kinston, for plaintiff.

J Faison thomson, of Goldsboro, and Whitaker & Jeffress, of Kinston, for defendant.

DENNY Justice.

The sole question presented on this appeal is whether or not the plaintiff has alleged sufficient facts, and with the particularity required by our decisions, to support a verdict for the relief sought. Lawrence v. Lawrence, 226 N.C. 634, 39 S.E.2d 807; Brooks v. Brooks, 226 N.C 280, 37 S.E.2d 909; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919; Pearce v. Pearce, 225 N.C. 571, 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; McManus v. McManus, 191 N.C. 740, 133 S.E. 9.

The defendant complains because it is somewhat difficult to ascertain from the pleadings whether the plaintiff bottoms her action on abandonment by the defendant or upon a course of conduct on the part of the defendant which she alleges constituted such indignities to her person as to render her condition intolerable and life burden-some. We concede that the pleadings filed herein by the plaintiff and the defendant, consisting of 25 pages of the record, are somewhat prolix. However, if the allegations of the plaintiff are sufficient, if proven, to sustain a verdict, the plaintiff is entitled to an affirmance of the order entered below.

The defendant contends the plaintiff abandoned him, and therefore she is not entitled to the relief she seeks. The plaintiff, on the other hand, alleges in her complaint that she left the home of the defendant on January 1, 1947, and took refuge in the home of her parents, but she further alleges she was compelled to do so by reason of the conduct of the defendant which constituted such indignities to her person as to render her condition intoler-able and life burdensome. If these allegations are true, they would constitute in law an abandonment by the defendant. Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 719; Pollard v. Pollard, supra; Blanchard v. Blanchard, supra.

The plaintiff alleges, among other things, that the defendant over a considerable period of time prior to their separation, insisted on spending a great deal of his time in the home of Mr. and Mrs. James Sutton. That Mr. Sutton is a partial invalid. That the defendant, about July, 1946, began to exhibit an interest in Lillie Mae Sutton, who prior to that time together with her husband had been intimate friends of the plaintiff and the defendant. That said interest increased on the part of Lillie Mae Sutton and the defendant in each other, until such relationship affected adversely the happiness which had theretofore existed between the plaintiff and the defendant. The defendant, without provocation, excuse or just cause on the part of the plaintiff, would leave the plaintiff and the child born of the marriage alone and visit in the Sutton home. Numerous visits were made, some in the daytime and others at night, some when Mr. Sutton was at home and some when he was away from home. That without provocation on her part, but merely upon inquiry concerning his visits to the home of the Suttons, the defendant assaulted her in July, 1946, and on December 5, 1946. Aud on the latter date as he assaulted her, he stated in an angry tone of voice that he 'ought to beat the dam hell out of her '. Later, after the separation, an effort was made to reconcile the marital differences between the plaintiff and defendant, and the defendant agreed to conduct himself with reference to Lillie Mae Sutton, so as not 'to again arouse suspicion on the part of his wife; and further agreed to go for the plaintiff on January 12, 1947, and take...