Harrington v. Harrington
Decision Date | 11 December 1974 |
Docket Number | No. 102,102 |
Citation | 210 S.E.2d 190,286 N.C. 260 |
Parties | Jane Pritchett HARRINGTON v. George Faulkner HARRINGTON. |
Court | North Carolina Supreme Court |
Joe T. Millsaps, Charlotte, for defendant-appellant.
Farris, Mallard & Underwood by E. Lynwood Mallard, Charlotte, for plaintiff-appellee.
Defendant first contends that the Court of Appeals erred in affirming the order of the District Court striking his defenses of adultery and willful abandonment.
G.S. § 50--6 provides in part:
'Divorce after separation of one year on application of either party.--Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. . . .'
The statute contains no requirement that separation of the parties be voluntary. Relative fault of the parties, therefore, is said to be irrelevant in many jurisdictions that have statutes similar to the one quoted above. Clark, Law of Domestic Relations 353 (1968); 1 Nelson, Divorce and Annulment § 4.47 (2d ed. 1945); Gardner v. Gardner, 250 Ala. 251, 34 So.2d 157 (1948); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944); Cotton v. Cotton, 306 Ky. 826, 209 S.W.2d 474 (1948). However, North Carolina does not accept this reasoning, and our cases hold that the affirmative defenses of abandonment and adultery can defeat an action for divorce based on separation. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968); Sears v. Sears, 253 N.C. 415, 117 S.E.2d 7 (1960); Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296 (1957); Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492 (1945); Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943); Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471 (1943).
As stated in Hicks v. Hicks, 275 N.C. 370, 167 S.E.2d 761 (1969):
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The doctrine of recrimination provides in effect that 'if both parties have a right to a divorce, neither of the parties has.' 27A C.J.S. Divorce § 67 (1959). Recrimination has often been criticized and some jurisdictions have limited its application or abolished the defense. 24 Am.Jur.2d, Divorce and Separation § 226 (1966); 48 N.C.L.Rev. 131, 133, n. 11 (1969). However, as Professor Lee says, 1 Lee, North Carolina Family Law § 88, p. 338 (3d ed. 1963).
Chief Justice Stacy aptly stated the reasoning behind the North Carolina rule in Byers v. Byers, supra:
'It is true, the statute under review provides that either party may sue for a divorce or for a dissolution of the bonds of matrimony,
The Court of Appeals cited Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889 (1962), as support for its holding that adultery is no longer a defense to an action for divorce based on separation. It is true that based upon the evidence in that case there is dictum to the effect that in a divorce action based on two years' separation the only defense recognized by our decisions is that the separation was caused by the act of the husband in willfully abandoning her. However, as Professor Lee says, this is 'clearly a dictum statement.' 1 Lee, North Carolina Family Law § 88, n. 74 (1974 Supp.). Such statement was not intended to overrule the well-settled rule in this jurisdiction that adultery, as well as abandonment, is a recriminatory defense that will defeat an action for divorce based on separation. Defendant's first assignment of error is sustained.
Defendant next contends that the Court of Appeals erred in upholding the trial court's conclusion that a custody proceeding constitutes a judicial separation such as will legalize the separation of the parties and deprive the defendant of his recriminatory defenses.
Either an action for a divorce A mensa et thoro, an action for alimony without divorce under former G.S. § 50--16, or a valid separation agreement may constitute a legalized...
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