Becker v. Becker, 100
| Decision Date | 04 November 1964 |
| Docket Number | No. 100,100 |
| Citation | 138 S.E.2d 507,262 N.C. 685 |
| Parties | Shirlee B. BECKER v. David H. BECKER. |
| Court | North Carolina Supreme Court |
Lamar Gudger, Asheville, for plaintiff appellee.
Shelby E. Horton, Jr., William J. Cocke, Asheville, for defendant appellant.
Defendant's first four assignments of error are directed to the refusal of the court below to continue the case.
According to the record, summons and verified complaint were served on the defendant on 13 December 1963. The defendant filed answer on 29 January 1964. The calendar on which this case was placed for trial was a three weeks session of civil court. This case was set for trial on Wednesday, 8 April 1964, of the third week of the session and two weeks before the case was called for trial the plaintiff's counsel informed defendant's counsel that the motion to strike would be withdrawn. The defendant contends he was put to a great disadvantage because the motion to strike was not withdrawn until the call of the case and came as a surprise. This contention is feckless.
Defendant's counsel knew the motion would be withdrawn and had known it for two weeks. Moreover, unquestionably, the court calendar had been prepared and distributed to the members of the Buncombe County Bar some time prior to the beginning of the session, and defendant's counsel knew when this case was to be called for trial. As a matter of fact, the defendant amended his answer only in one respect after withdrawing his cross action. He simply inserted the name of an alleged corespondent in adultery. The defendant cannot claim the right to a continuance based on his own amendment which did not materially change his allegations of recrimination already pleaded in his answer. An amended pleading at the session the case is called for trial, which raises additional issues of fact, may justify the continuance of the case on motion of the opposing party. However, such amendment will not ordinarily justify a continuance on motion of the party submitting the amendment. The amendment to the defendant's answer raised no new issues of fact; therefore, the rule laid down in Dobson v. Railway Co., 129 N.C. 289, 40 S.E. 42, is not applicable.
Moreover, in our opinion, G.S. § 1-173, upon which the defendant relies, is not applicable to the facts in this case. The plaintiff tried her case on her original complaint which had been filed and served on the defendant on 13 December 1963. The defendant had filed his answer on 29 January 1964; therefore, the issues had been joined from and after that date. Furthermore, a motion for continuance is addressed to the sound discretion of the trial judge, and in the absence of manifest abuse of such discretion his ruling thereon is not reviewable. Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1; Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910. The defendant does not contend there was an abuse of discretion but claims he was entitled to a continuance as a matter of right under G.S. § 1-173. We do not so hold and these assignments of error are overruled.
The defendant assigns as error the refusal of the court below to grant defendant a jury trial on plaintiff's cause of action for divorce, upon motion made after the case was called for trial.
G.S. § 50-10 was amended by Chapter 540 of the Session Laws of North Carolina, 1963, by adding the following: "Notwithstanding the above provisions, the right to have the facts determined by a jury shall be deemed to be waived in divorce actions based on two (2) years separation as set forth in G.S. 50-5(4) or 50-6, where defendant has been personally served with summons, or where the defendant has accepted service of summons, whether within or without the State, unless such defendant, or the plaintiff, files a request for a jury trial with the clerk of the court in which the action is pending, prior to the call of the action for trial.'
'In all divorce actions tried without a jury as in this Act provided the presiding judge shall answer the issues and render judgment thereon.'
'A party may waive the right to a jury trial in civil actions by failure to follow the statutory procedure to preserve such right.' Strong's N.C. Index, Constitutional Law, Volume 1, Section 4 page 518; Caudle v. Swanson, 248 N.C. 249, 103 S.E.2d 357; Better Home Furniture Co. of Winston-Salem v. Baron, 243 N.C. 502, 91 S.E.2d 236; Bartlett v. Hopkins, 235 N.C. 165, 69 S.E.2d 236; Chesson v. Kieckhefer Container Co., 223 N.C. 378, 26 S.E.2d 904.
The mere fact that the defendant decided to withdraw his cross action, which if it had been tried would have been tried by a jury, does not justify his position in demanding a jury for the trial of plaintiff's cause of action for divorce without complying with the statutory requirements. Doubtless, defendant knew he was goind to withdraw his cross action before the case was called, but he failed to request a jury trial on plaintiff's cause of action. He never filed a request for a jury trial with the Clerk of the Superior Court of Buncombe County before the case was called for trial as required by G.S. § 50-10.
This assignment of error is overruled.
The defendant further assigns as error the refusal of the court below to allow him to testify as to the adulterous disposition of the plaintiff in support of his allegations of recrimination.
Among other things it is provided in G.S. § 8-56: '* * * Nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery; or in any action or proceeding for or on account of criminal conversation, except that in actions of criminal conversation brought by the husband in which the character of the wife is assailed she shall be a competent witness to testify in refutation of such charges * * *.'
Likewise, it is provided in G.S. § 50-10 that in a trial pursuant thereto, 'neither the husband nor wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact.'
In the case of Perkins v. Perkins, 88 N.C. 41, Ruffin, J., said: 'The provision of the statute (Battle's Revisal, Chapter 17, Section 341, now G.S. § 8-56) is so pointed and its language so plain--that in such trials, neither the husband nor the wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either be received as evidence to prove such fact--as to leave no room for doubt or construction.'
The proffered evidence was clearly inadmissible. G.S. §§ 8-56, 50-10; Knighten v. McClain,...
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