O'Brien v. O'Brien, 443

• Decision Date: 04 February 1966
• Docket Number: No. 443,443
• Citation: 266 N.C. 502,146 S.E.2d 500
• Court: North Carolina Supreme Court
• Parties: Raymond Bahnson O'BRIEN v. Helen Virginia Everhart O'BRIEN.

Page 500

146 S.E.2d 500

266 N.C. 502

Raymond Bahnson O'BRIEN v. Helen Virginia Everhart O'BRIEN.

No. 443.

Supreme Court of North Carolina.

Feb. 4, 1966.

Fred M. Parrish, Jr., Hatfield & Allman and Roy G. Hall, J., Winston-Salem, for plaintiff appellee.

Clyde C. Randolph, Jr., Winston-Salem, for defendant appellant.

BOBBITT, Justice.

The separation agreements offered in evidence by plaintiff and admitted over defendant's objections were duly executed and acknowledged by plaintiff and defendant; and, in accordance with the statute then codified as G.S. § 52-12, the justice of the peace who took defendant's acknowledgment, after private examination of defendant, certified that the agreement(s) was not unreasonable or injurious to her.

Both separation agreements contain this provision: '* * * Helen Virginia Everhart O'Brien and Raymond Bahnson O'Brien do agree to separate and live separate and apart from and after the 18th day of January, 1960 and that they shall continue to live separate and apart each from the other, as fully and as completely and in the same manner and to the same extent as though they had never been married * * *.' The separation agreement of October 11, 1960 differs from that of March 7, 1960 only in respect of the payments the husband was required to make to the wife for her support and the support of the two minor children.

Where the husband sues the wife under G.S. § 50-6 for an absolute divorce on the ground of two years separation, the wife may defeat the husband's action by alleging and establishing as an affirmative defense that the separation was caused by the husband's abandonment of his wife. Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373, and cases cited. Whether the admitted or excluded evidence proffered by defendant relating to what occurred on the occasion of the separation in January 1960 was sufficient, in the absence of the separation agreements, to require submission of the additional issue tendered by defendant and to support an answer thereto in favor of defendant need not be determined. Defendant does not attack the separation agreements but, as indicated below, has relied thereon in a separate action against her husband. 'When a husband and wife execute a valid deed of separation and thereafter live apart, such separation exists by mutual consent from the date of the execution of the instrument. Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525. As long as the deed stands unimpeached, neither party can attack the legality of the separation on account of the misconduct of the other prior to its execution. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235.' Jones v. Jones, 261 N.C. 612, 135 S.E.2d 554; Edmisten v. Edmisten, 265 N.C. 488, 144 S.E.2d 404. The separation agreements having been entered into more than two years prior to the date of the institution of this action, the circumstances surrounding the separation in January 1960 were no longer significant and relevant in respect of plaintiff's right to obtain an absolute divorce on the ground of two years separation. Hence, the court properly refused to submit the additional issue tendered by defendant.

The documents discussed below are those proffered in evidence by defendant but excluded by the court on objections by plaintiff.

Two of these documents are orders entered in a separate action instituted August 15, 1961, by the wife (defendant herein) under G.S. § 50-16 against the husband (plaintiff herein) after hearings on return of orders to the husband to show cause why he should not be adjudged in contempt for failure to make the payments for the support of his wife and two minor children as provided by an order entered in said separate action by Johnston, J., on August 20, 1961. The first of these orders, signed August 2, 1962, by Gambill, J., determined that the husband was in arrears in the amount of $535.00 and ordered that he be taken into custody upon his failure to make payment thereof. The second, signed August 28, 1963, by Olive, E. J., after setting forth extensive findings of fact, determined that the husband was in arrears in the amount of $1,710.00, and that he had wilfully failed and refused to make the payments required by Judge Johnston's order of August 20, 1961; and it was ordered that he be confined in the common jail of Forsyth County until he complied with Judge Johnston's said order or was 'otherwise discharged according to law.'

Defendant, in her answer, did not plead said orders or either of them as an affirmative defense to plaintiff's action. Indeed, her pleadings contains no reference to said orders or to the separate action in which they were entered. Absent such pleading, the said orders were not relevant to issues raised by the pleadings.

G.S. § 50-11 provides, with exceptions not pertinent here, that 'a decree of absolute divorce shall not impair or destroy the right of the wife to receive alimony and other rights provided for her under any judgment or decree of a court rendered before the rendering of the judgment for absolute divorce.'

The order entered by Judge Johnston in said separate action on August 20, 1961, is not before us. The two orders proffered in evidence by defendant relate to the status of said separate action as of August 2, 1962, and August 28, 1963, respectively. They do not show the...