Eudy v. Eudy, No. 124

• Docket Nº: No. 124
• Citation: 215 S.E.2d 782, 288 N.C. 71
• Case Date: June 26, 1975
• Court: United States State Supreme Court of North Carolina

Page 782

215 S.E.2d 782 288 N.C. 71 Marcie Gaynell EUDY
v.
Van Patrick EUDY. No. 124. Supreme Court of North Carolina. June 26, 1975.

Henry T. Drake, Wadesboro, for plaintiff appellant.

Page 785

Clark & Griffin by Richard S. Clark and Lewis R. Fisher, and Coble Funderburk, Monroe, for defendant appellee.

BRANCH, Justice.

Plaintiff contends that the Court of Appeals erred in granting a new trial because her complaint failed to allege that either she or defendant were residents of the State of North Carolina for six months next preceding the filing of her complaint.

G.S. § 50--8, in part, provides that in all actions for divorce plaintiff shall set forth in his or her complaint that complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding filing of the complaint. Prior to the enactment of Chapter 590 of the 1951 Session Laws, the Court acquired no jurisdiction in an action for absolute divorce or in an action for divorce from bed and board unless plaintiff filed with his complaint an affidavit containing the required statutory averments, one of which was the above-quoted residency requirement. The filing of this affidavit was mandatory. Absent all required averments, the Court had no jurisdiction, and the action was subject to dismissal by the Court, either Ex mero motu or upon motion duly made. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617; Hodges v. Hodges, 226 N.C. 570, 39 S.E.2d 596; Nichols v. Nichols, 128 N.C. 108, 38 S.E. 296. On the other hand, when the proper affidavit was filed, the Court acquired jurisdiction in divorce actions. Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97. The 1951 Act eliminated the necessity for the affidavit, but the Act now codified as G.S. § 50--8 requires plaintiff, Inter alia, to set forth in his or her complaint an allegation that complainant or defendant has been a resident of North Carolina for at least six months next preceding the filing of the complaint. Thus, the allegations required by G.S. § 50--8 are indispensable, constituent elements of a divorce action and must be established either by the verdict of a jury or by a judge, as the pertinent statute may permit. G.S. § 50--10; Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296.

[288 N.C. 75] The statutory changes eliminating the necessity for the filing of the affidavit and allowing a judge in some cases to become the trier of facts in divorce actions do not change the fundamental precepts that jurisdiction over the subject matter of divorce is statutory and that all averments required by the statute must be both alleged in the complaint and found by the finder of fact to be true before a divorce judgment may be entered. G.S. § 50--10; Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703; Israel v. Israel, 255 N.C. 391, 121 S.E.2d 713; Martin v. Martin, 253 N.C. 704, 118 S.E.2d 29; Pruett v. Pruett, Supra; Carpenter v. Carpenter, Supra; Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7.

Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction. Burtnett v. King, 33 Cal.2d 805, 205 P.2d 657; 20 Am.Jur.2d Courts § 151 at 497. In instant case plaintiff failed to allege the residential requirements expressly required by G.S. § 50--8, and the Court therefore was without jurisdiction to grant plaintiff a divorce from bed and board unless, as plaintiff contends, the pleadings were amended by the rule of 'litigation by consent' pursuant to G.S. § 1A--1, Rule 15(b) (hereafter cited as Rule 15(b)). We turn to consideration of the effect of this rule upon the facts of this case.

Rule 15(b) reads as follows:

When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, either

Page 786

before or after judgment, but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense [288 N.C. 76] upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

We discussed the rationale of this rule in Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721. We quote from that case:

The thrust of this rule seems to destroy the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings and, in some cases, by the evidence. Under 15(b) the rule of 'litigation by consent' is applied when No objection is made on the specific ground that the evidence offered is not within the issues raised by the pleadings. In such case the statutory rule, in effect, amends the pleadings to conform to the evidence and allows any issue raised by the evidence to go to the jury. Even when the evidence is objected to on the ground that it is not within the issues raised by the pleadings the court will freely allow amendments to present the merits of the case when the objecting party fails to satisfy the court that he would be prejudiced in the trial on its merits. The far-reaching effect of this statutory rule is emphasized by the burden placed on the objecting party to specify the grounds of objection and to satisfy the court that he will be prejudiced by the admission of the evidence or by litigation of the issues raised by the evidence. The objecting party...