Jones v. Jones

• Decision Date: 04 April 1917
• Docket Number: 323.
• Citation: 91 S.E. 960,173 N.C. 279
• Parties: JONES v. JONES.
• Court: North Carolina Supreme Court

91 S.E. 960

173 N.C. 279

JONES v. JONES.

No. 323.

Supreme Court of North Carolina

April 4, 1917

Appeal from Superior Court, Person County; Cooke, Judge.

Action by Lelia B. Jones against Walter J. Jones. From a judgment allowing plaintiff alimony pendente lite and counsel fees defendant appeals. Affirmed.

A husband has no right to correct his wife by physical force and to beat her with his fists.

This is an appeal from the judgment allowing the plaintiff alimony pendente lite and counsel fees, in an action for divorce from bed and board. The action was begun September 18, 1916, the summons being returnable to October term of Person, 1916 which began on October 16th. The complaint was filed Saturday, October 14th. On Wednesday of October term the plaintiff moved in open court for an allowance for alimony pendente lite and counsel fees in accordance with the request in the complaint. The defendant in open court resisted the motion. The court postponed the hearing till the next evening, Thursday, October 21st, when court being about to adjourn, he heard the motion and found the following facts upon the complaint and answer used as affidavits, and such other evidence as was offered: That the plaintiff and defendant were married in October, 1911, and have two children, aged 3 1/2 and 1 1/2 years, respectively; that the defendant has offered such indignities to the person of the plaintiff as to make her condition intolerable and her life burdensome; that in August, 1916, the defendant abandoned the plaintiff and caused her to leave his home; that in 1914 he tried to get the plaintiff to release her right in his property and make him free in consideration of $1,000, and became greatly enraged because she did not do so; that in 1913 the defendant said to the plaintiff that "when he got his business straight and like he wanted it, the plaintiff could take the cook and go to hell, or walk up and down the big road and eat flint rocks, as far as he cared"; that he often left the plaintiff for three or four days during the week and refused her request for a pistol for protection during his absence; that he drank a great deal of whisky, and in November, 1914, he accused the plaintiff of taking a quart of his whisky, which he later found in his auto, but did not apologize; that in 1914 the defendant repeatedly stayed out two or three nights in the week, until 4 o'clock in the morning, and in November of that year he moved a negro woman and her children into a house in the yard, and boasted to the plaintiff the woman's boy was his son; that the negro woman and her children annoyed the plaintiff by taking her wood, and were insolent to her, and that when the plaintiff complained the defendant upheld the negro woman and abused the plaintiff and upon the plaintiff's saying that she could not stand such conditions any longer, and would have to go home, the defendant told her she "could take her choice" that under such conditions her health becoming impaired and fearing for her personal safety she went to her father's; that about three weeks thereafter the defendant went to her, asking her to return, and promised that he would not mistreat her again, and would send the negro woman away, and under the circumstances and relying upon such promise she returned with the defendant, who did get rid of the negro woman, but in a day or two began to abuse the plaintiff, insisting that she should sign papers releasing all her interest in his property, and give him a divorce, and upon her refusal he became greatly enraged and told the plaintiff she could "go to * * * and eat flint rocks for all he cared"; that he unnecessarily required her to do an unusual amount of work just prior to Christmas, 1914 (when she was in a pregnant condition), in regard to hog killing, and though she did all she could, the defendant told her if she "did not attend to business what in ____ did he want with her there"; that when the plaintiff had finished the work of drying up the lard, besides doing the cooking and looking after the house while she was in an exhausted condition therefrom, the defendant brought a drunken companion home with him late on Christmas Eve and made the plaintiff late at night cook an oyster supper for them, though she had already cooked supper for the family; that the defendant was often gone a week at a time without letting plaintiff know his whereabouts, without having any one at home for her protection; that in May, 1916, the defendant told the plaintiff he was "going to sell everything, and was not going to be bothered with women and children; that he had enough to take care of himself, and did not expect to hit a lick of work for any one," and often repeated this to the plaintiff; that in August, 1916, he came to plaintiff's father's about 2 o'clock at night, and carried her home, reaching there about 4 o'clock in the morning, whereupon the defendant himself retired to bed, but put the plaintiff to work preparing breakfast and supply of bread to last his hands three days; that in August, 1916, the defendant took the oldest child from plaintiff's arms, and struck the plaintiff on her breast, knocking her against the sewing machine, which blow left finger prints and bruises on the plaintiff for several days; that he charged the plaintiff with adultery with one Loman, which charge the court finds was untrue and without foundation; that the defendant took both the children away and carried them to his father's house in Virginia; that he was often drunk and used personal violence and foul language to her.

The judge finds that the plaintiff during her married life had been a good, kind, and dutiful wife, and has performed faithfully her household duties, and has often been required, in addition to cooking, washing, ironing, cleaning the house, and attending to the children, to work in the garden, and carry slops to the hogs, a quarter of a mile distant; that the plaintiff gave the defendant no cause of provocation for his cruel and unjust conduct, or for the indignities he has heaped upon her, and that she was put in bodily fear of the defendant, and her life rendered intolerable and burdensome, and that the plaintiff, by reason of defendant's false accusations against her and his violence, is unable to endure living further with him.

The judge also finds that the defendant is a man of good health and strength, 47 years of age, of good earning capacity, and is worth from $15,000 to $20,000, and owns, according to admission of his counsel in open court 535 acres of land; that the defendant for the last two years has greatly neglected his farm and other business; that the net annual income of the defendant with proper attention to business is reasonably $2,000 per year; that the plaintiff has no separate estate, is worth no property, and has no means of subsistence during the pendency of litigation or to pay for the prosecution of this action; that the defendant removed the children from the jurisdiction of this state and carried them to Virginia, where they now are; and that the plaintiff is entitled to the custody of said children.

Upon finding the foregoing facts and others of like nature, the judge awarded the custody of the two children to plaintiff, and adjudged that the defendant should in 30 days pay to the plaintiff or into court the sum of $150, to enable her to prosecute this action, and that he should pay her or into court for her benefit $50 per month alimony, to begin on the day of the order, and $15 per month for the support of said children, to begin when they are placed in her custody.

The defendant excepted and appealed.

Wm. D. Merritt, of Roxboro, and Bryant & Brogden, of Durham, for appellant.

L. M. Carlton, of Roxboro, and Manning & Kitchin, of Raleigh, for appellee.

CLARK C.J.

There was evidence to support the above findings of fact, and it cannot be questioned that upon such findings the judgment of the court is fully supported. The cases of Everton v. Everton, 50 N.C. 202, and Miller v. Miller, 78 N.C. 102, cannot be deemed authority in this day, but if they were, they would not authorize the reversal of the orders made by the judge in this case. Indeed, the defendant's counsel rest the appeal practically upon the proviso in Revisal, § 1566, as follows:

"Provided, that no order allowing alimony pendente lite shall be made

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