Cantwell v. Cantwell, No. 9228DC184
| Docket Nº | No. 9228DC184 |
| Citation | 109 N.C.App. 395, 427 S.E.2d 129 |
| Case Date | March 16, 1993 |
| Court | Court of Appeal of North Carolina (US) |
Page 129
v.
Janet A. CANTWELL.
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.
[109 N.C.App. 396] 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
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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.
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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...
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Griffith v. Griffith, No. 2890.
...to choose between the Fifth Amendment privilege and the continuation of their claim for affirmative relief. See Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993); Stockham v. Stockham, 168 So.2d 320 (Fla.1964) (equity considerations require complaining spouse in divorce action t......
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Herndon v. Herndon, No. COA15–28.
...and affirmed the lower court's contempt ruling. See McKillop, 139 N.C.App. at 64–65, 532 S.E.2d at 601 ("[U]nder [ Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993) ], we hold that [the] plaintiff must choose between her right not to incriminate herself in a pending criminal tri......
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McKillop v. Onslow County, No. COA99-814.
...the Ordinance and the court's order, Det. Condry, was uncorroborated. This Court was faced with this same issue in Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993), where the defendant in a divorce action, seeking alimony, invoked her Fifth Amendment privilege when her husband ......
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Herndon v. Herndon, No. COA15-28
...affirmed the lower court's contempt ruling. See McKillop, 139 N.C. App. at 64-65, 532 S.E.2d at 601 ("[U]nder [Cantwell v. Cantwell, 109 N.C. App. 395, 427 S.E.2d 129 (1993)], we hold that [the] plaintiff must choose between her right not to incriminate herself in a pending criminal trial a......
-
Griffith v. Griffith, No. 2890.
...to choose between the Fifth Amendment privilege and the continuation of their claim for affirmative relief. See Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993); Stockham v. Stockham, 168 So.2d 320 (Fla.1964) (equity considerations require complaining spouse in divorce action t......
-
Herndon v. Herndon, No. COA15–28.
...and affirmed the lower court's contempt ruling. See McKillop, 139 N.C.App. at 64–65, 532 S.E.2d at 601 ("[U]nder [ Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993) ], we hold that [the] plaintiff must choose between her right not to incriminate herself in a pending criminal tri......
-
McKillop v. Onslow County, No. COA99-814.
...the Ordinance and the court's order, Det. Condry, was uncorroborated. This Court was faced with this same issue in Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993), where the defendant in a divorce action, seeking alimony, invoked her Fifth Amendment privilege when her husband ......
-
Herndon v. Herndon, No. COA15-28
...affirmed the lower court's contempt ruling. See McKillop, 139 N.C. App. at 64-65, 532 S.E.2d at 601 ("[U]nder [Cantwell v. Cantwell, 109 N.C. App. 395, 427 S.E.2d 129 (1993)], we hold that [the] plaintiff must choose between her right not to incriminate herself in a pending criminal trial a......