Byers v. Byers

• Decision Date: 28 April 1943
• Docket Number: No. 524.,524.
• Citation: 25 S.E.2d 466,223 N.C. 85
• Court: North Carolina Supreme Court
• Parties: BYERS. v. BYERS.

25 S.E.2d 466
223 N.C. 85

BYERS.
v.
BYERS.

No. 524.

Supreme Court of North Carolina.

April 28, 1943.

[25 S.E.2d 467]

Appeal from Superior Court, Mecklenburg County; Jeff D. Johnson, Special Judge.

Action by C. M. Byers against Sara Sherman Byers for divorce, wherein defendant brought a cross-action for alimony without divorce. From an order permitting defendant to amend answer and set up in bar of plaintiff's action record in an independent action by defendant for alimony without divorce and from an order overruling plaintiff's demurrer to plea in bar, plaintiff appeals.

Affirmed.

Civil action for absolute divorce on the ground of two years' separation.

The complaint filed March 7, 1942, alleges:

1. That plaintiff and defendant were married in March, 1936, and lived together as husband and wife until February, 1940, when they separated.

2. That plaintiff and defendant have lived separate and apart continuously for the past two years, and the plaintiff has resided in this State for a period of one year.

Wherefore, plaintiff prays that the bonds of matrimony be dissolved as provided by Chap. 100, Public Laws 1937.

Defendant filed answer April 10, 1942, admitted the marriage and alleged that plaintiff and defendant lived together as husband and wife from March 1936 until the plaintiff wrongfully abandoned her in September 1940. She also admitted the plaintiff's residence in the State for a period of one year, but denied that they had lived separate and apart within the meaning of the divorce laws.

In a further defense and cross-action the defendant asked for alimony without divorce or subsistence and counsel fees under C.S. § 1667, as amended.

The plaintiff filed motion to strike the further answer and cross-action under authority of Silver v. Silver, 220 N.C. 191, 16 S.E.2d 834, and Shore v. Shore, 220 N.C. 802, 18 S.E.2d 353, which was allowed. Whereupon, the defendant instituted an independent action for subsistence and counsel fees, alleging wrongful abandonment, etc., on the part of defendant, and upon denial of liability and issues joined, the jury found that the defendant therein, plaintiff herein, had failed to provide his wife and their two children with necessary subsistence and that he had offered "such indignities to the person of the plaintiff (the wife) as to render her condition intolerable and life burdensome, without any fault of the plaintiff, as alleged in the complaint."

In the meantime a trial of the present action resulted in verdict and judgment for defendant, from which the plaintiff appealed, and a new trial was awarded for error in the charge. 222 N.C. 298, 22 S.E. 2d 902.

Over objection of plaintiff, the defendant then applied to the court for leave to amend her answer and to set up in bar of the plain-

[25 S.E.2d 468]

tiff's action the record in the case by the defendant for alimony without divorce.

The motion being allowed, the plaintiff interposed a demurrer to the plea in bar, which was overruled. From the two rulings, the plaintiff appeals, assigning errors.

Thaddeus A. Adams, of Charlotte, for plaintiff-appellant.

Carswell & Ervin and Robinson & Jones, all of Charlotte, for defendant-appellee.

STACY, Chief Justice.

The broad question for decision is whether an action for divorce may be maintained on the ground that "the husband and wife have lived separate and apart for two years" (Chap. 100, Public Laws 1937), when it is shown and pleaded in bar that such separation was the result of the plaintiff's wrongful abandonment of the defendant and their two children, and his offering such indignities to the person of the defendant as to render her condition intolerable and life burdensome. Specifically, the question posed is whether the amended answer states a good plea in bar, admitting for the purpose the truth of the facts alleged. 17 Am.Jur. 267; 27 C.J.S, Divorce, § 67, p. 625.

The history of the "separation" statute was given in part on the former appeal, reported in 222 N.C. 298, 22 S.E.2d 902, to which reference may be had to avoid repetition. See, also, Brown v. Brown, 213 N.C. 347, 196 S.E. 333.

Briefly, it may be recalled that the first separation statute in this State was a ten-year statute, enacted in 1907, Chap. 89, Laws 1907.

In Cooke v. Cooke, 164 N.C. 272, 80 S. E. 178, 49 L.R.A, N.S., 1034, it was held by a sharply divided court, that the plaintiff in an action for divorce under the conditions named in the statute, as amended by Chap. 165, Laws 1913, was entitled to a decree in his or her favor without reference to whether the plaintiff or the defendant was in fault in bringing about the separation, and that the time covered by a decree a mensa et thoro rendered in an action brought by the wife should not be excluded in computing the period of separation.

Thereafter, the Cooke case was rendered apocryphal by the recodification of the laws in 1919--Consolidated Statutes--when the provisions of the separation statute were brought forward as subsection 4 of the gen eral divorce section, C.S. § 1659, which provides that "marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of the party injured, * * * in the following cases", naming them'. (Italics added.) This was so declared in the cases of Sanderson v. Sanderson, 178 N.C. 339, 100 S.E. 590, and Lee v. Lee, 182 N.C. 61, 108 S.E. 352.

The law remained in this condition, in respect of the "party injured", until the enactment of Chap. 72, Public Laws 1931, in which it was provided: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for five years", etc. (reduced to two years by Chap. 163, Public Laws 1933). And further: "That this Act shall be in addition to other acts and not construed as repealing other laws on the subject of divorce".

In two cases arising under the 1931 Act, as amended in 1933, it was held that the applicant for divorce need not be "the injured party". Long v. Long, 206 N.C. 706, 175 S.E. 85, 86; Campbell v. Campbell, 207 N.C. 859, 176 S.E. 250. In neither of these cases, however, was there a plea in bar based on the wrong of the applicant. The principle really applied was that stated by Avery, J., in Steele v. Steele, 104 N.C. 631, 10 S.E. 707, 709: "The plaintiff is not held bound to anticipate and negative in advance...