Hyder v. Hyder

• Decision Date: 08 March 1939
• Docket Number: 166.
• Citation: 1 S.E.2d 540,215 N.C. 239
• Parties: HYDER v. HYDER.
• Court: North Carolina Supreme Court

1 S.E.2d 540

215 N.C. 239

HYDER v. HYDER.

No. 166.

Supreme Court of North Carolina

March 8, 1939

This is an action under the provisions of Chapter 100, Pub.Laws 1937, in which the plaintiff makes the necessary allegations for a divorce on the ground of having lived separate and apart from his wife for two years. The defendant, answering admits the marriage between herself and the plaintiff, the plaintiff's residence in the State for one year, and the fact of his having lived separate and apart from her for two years. The defendant, by way of further answer and plea in bar, alleges that the plaintiff wilfully abandoned her, his wife, without providing adequate support for her. The jury answered the issues of marriage, residence and separation in favor of the plaintiff, but answered in the affirmative the fourth issue, which reads: "Did the plaintiff wrongfully abandon the defendant, as alleged in the answer?" From a judgment denying him a divorce the plaintiff appealed assigning errors.

Arthur J. Redden, of Hendersonville, for appellant.

J E. Shipman, of Hendersonville, for appellee.

SCHENCK Justice.

The appellant assigns as error an excerpt from the charge which reads: "Now, gentlemen, the burden of proof of that issue is on the defendant Mrs. Hyder to satisfy you by the greater weight of the evidence that the plaintiff criminally and unlawfully abandoned her; and there are two elements of abandonment which must be shown, and shown by the greater weight of the evidence, before she can prevail. She must first show that the abandonment, that is, the separation, was wilful on his part, that is, wrongful, without just cause or excuse; and, second, that he has failed to provide adequate support for her. If she has failed to establish both of these elements, that is, wilful abandonment and lack of adequate support, then the defendant has failed to carry the burden imposed by law and the plaintiff will prevail. On the other hand, if she has shown this by the greater weight of the evidence, then it will be your duty to answer the fourth issue in her favor."

The appellant contends that the omission of the court to instruct the jury that the failure to provide adequate support for his wife must be wilful, as well as the abandonment of her constitutes error. A reading of the statute making abandonment a criminal offense divulges that such contention is untenable. The statute, C.S. § 447, reads: "If any husband shall willfully abandon his wife without providing...