Cantwell v. Cantwell

• Decision Date: 16 March 1993
• Docket Number: No. 9228DC184,9228DC184
• Parties: Cameron W. CANTWELL v. Janet A. CANTWELL.
• Court: North Carolina Court of Appeals

Page 129

427 S.E.2d 129

109 N.C.App. 395

Cameron W. CANTWELL v. Janet A. CANTWELL.

No. 9228DC184.

Court of Appeals of North Carolina.

March 16, 1993.

Dennis J. Winner, P.A. by Dennis J. Winner, Asheville, for plaintiff-appellee.

Gum & Hillier, P.A. by Howard L. Gum and Carter & Kropelnicki, P.A. by Steven Kropelnicki, Jr., Asheville, for defendant-appellant.

WYNN, Judge.

The plaintiff, Cameron Cantwell, filed an action for absolute divorce against the defendant, Janet Cantwell, in June 1991. The defendant, in turn, filed an Answer admitting the divorce allegations and asserting a counterclaim for alimony. In her counterclaim, she alleged that she had been a dutiful and faithful wife to the plaintiff and that without excuse or provocation he had abandoned her on 3 October 1983. The defendant also alleged, in support of her right to alimony, that the plaintiff had committed adultery.

The plaintiff denied the allegations contained in the defendant's counterclaim and also asserted, as an affirmative defense, that the defendant was barred from receiving alimony because of her own adulterous activity. While being deposed by the plaintiff's counsel in September 1991, the defendant was asked: "Since the time of the separation with what male person have you socialized with in any way on an individual basis." In response, she asserted her privilege against self-incrimination and refused to answer that question or any other questions attempting to establish that she had committed adultery. The plaintiff then filed a motion to compel her to answer.

At a hearing on the motion to compel, the parties stipulated that counsel for the plaintiff intended to continue his attempt to elicit from the defendant evidence of her adultery and that the defendant intended to continue to assert her privilege against self-incrimination. The trial court entered an Order in which it found that the defendant had a right to invoke her privilege but that in so doing she waived her right to assert a claim for alimony. Consequently, the trial court ordered that the alimony claim be stricken from the defendant's counterclaim and dismissed.

From that Order, the defendant appeals.

The sole issue on appeal is whether the trial court committed reversible error in striking the defendant's alimony counterclaim and dismissing that claim. The defendant argues that she has the right to exercise her privilege against self-incrimination, and that the action by the trial court violates her rights under the Constitution of the United States and the North Carolina Constitution. We agree that the defendant had a right to exercise her privilege, but disagree that the trial court's action violated her constitutional rights.

The constitutional privilege against self-incrimination assures all individuals that they will not be compelled to give testimony which will tend to incriminate them or which will tend to subject them to fines, penalties or forfeiture. Allred v. Graves, 261 N.C. 31, 35, 134 S.E.2d 186, 190 (1964). Under the laws of our state, adultery constitutes a misdemeanor, and testimony from the defendant regarding her alleged adulterous relationships could subject her to criminal prosecution. See N.C.Gen.Stat. § 14-184 (1986). Therefore, the defendant could properly invoke the privilege in the course of her deposition testimony. See N.C.Gen.Stat. § 1A-1, Rule 26(b)(1) (1990) (in a civil action parties may obtain discovery regarding relevant matters except those that are privileged).

While we recognize that the defendant in the present case had the right to invoke her privilege against self-incrimination, "[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege...." Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589, 597 reh'g denied, 356 U.S. 948, 78 S.Ct. 776, 2 L.Ed.2d 822 (1958) (a party witness in a criminal case cannot present testimony on direct examination and then invoke the privilege on cross-examination); see also Pulawski v. Pulawski, 463 A.2d 151, 157 (R.I.1983) (as between private litigants, the privilege against self-incrimination must be weighed against the right of the other party to due process and a fair trial). The privilege against...