Lassiter v. Lassiter

• Decision Date: 28 February 1885
• Citation: 92 N.C. 129
• Court: North Carolina Supreme Court
• Parties: SARAH LASSITER v. DANIEL LASSITER.

92 N.C. 129

SARAH LASSITER

v.DANIEL LASSITER.

Supreme Court of North Carolina.

February Term, 1885.

Application for alimony pendente lite, in an action pending in the Superior Court of RICHMOND county, heard before Philips, Judge, at chambers.

There was a judgment allowing alimony, and the defendant appealed.

The facts fully appear in the opinion.

Messrs. J. D. Shaw, J. W. Hinsdale and J. C. Black, for the plaintiff .

Messrs. Le Grand & Tillett and W. A. Guthrie, for the defendant .

ASHE, J.

This was an application for alimony pendente lite in an action brought by the plaintiff against the defendant in the Superior Court of Richmond county, and heard at Chambers by His Honor, Judge Philips.

Upon considering the complaint of the plaintiff and the answer of the defendant, and the affidavits offered by both plaintiff and defendant, His Honor found the following facts:

1. That the plaintiff and defendant were married in or about the year 1852, and they have ten children, the oldest of whom is about thirty years of age, and the youngest about seven years of age.

2. That the defendant has offered such indignities to the person of the plaintiff as to render her condition intolerable and life burdensome. That rejecting altogether the acts and indignities mentioned in affidavits not set forth or alluded to in plaintiff's complaint, and considering only those allegations contained in the pleadings, and the affidavits filed in support of those allegations, as well as those in denial, His Honor found the following particular facts:

(1). In or about September, 1880, without any just cause or provocation, the defendant abused plaintiff, called her a liar and choked her.

(2). In or about October, 1880, the defendant, without just cause or provocation, encouraged the children of plaintiff and defendant to mistreat and disobey plaintiff, and told her he would give her fifty lashes if she attempted to exercise any control over said children.

(3). In or about August, 1881, the defendant, without just cause or provocation, threatened to strike plaintiff in the face with a tea-cup, throw her off the steps, wouldn't let her have anything to eat, and wouldn't let her come into the house. That in consequence of such treatment, plaintiff left the house of defendant, and remained away until January, 1882, when, having nothing to live upon, and hoping that defendant might treat her kindly and support her, she returned, when defendant arrayed her children against her, and encouraged them and upheld them in abusing and mistreating her. That defendant continued his threats and abuse until about February, 1882, when he ordered plaintiff to go to the woods to rake straw, and upon her telling him she was unable to do this kind of work, he pulled her out of the house, called for a hame-string, wrapped it around her arm and forced her to the woods in a cruel manner.

(4). In or about March, 1882, the defendant, without cause or provocation, threatened to strike plaintiff in the face with an ear of corn, and did strike her with a brush and inflicted bruises on her person.

(5). In or about May, 1882, one of their children struck plaintiff with a chair, and the defendant shook his hand at her, and told his children to resist any effort on her part to correct them.

3. That by reason of such treatment, plaintiff was forced to leave the house of defendant, and remain away without means of support, except such as she could procure from neighbors and friends. That in January, 1883, she instituted proceedings for divorce and alimony, when she was prevailed upon by defendant to withdraw said proceedings and return to his house, he promising to treat her with all the respect due from a husband to a wife, and to make his children treat her with respect, and trusting to his promise, she was induced to withdraw her suit and return to his house, which she did in February, 1883.

4. That, in the month of May, 1883, the defendant, without cause, again commenced to abuse and maltreat plaintiff as he formerly did, and he continued this treatment in the presence of their children; that he failed to provide for her; that he did not allow her enough to eat; that he only gave her one cotton dress in the way of clothing; that he borrowed one dollar from her and refused to pay it back; that he would frequently call her “old devil” and “old liar,” ““no account,” in the presence of their children, and encouraged them to abuse their mother.

5. That, by reason of such treatment continued by the defendant, after plaintiff had abandoned her suit for divorce and alimony in February, 1883, and returned to his home by his promises, plaintiff was forced by such treatment to leave defendant's house again.

6. That plaintiff is about fifty years of age, in feeble health, owns no property, and is utterly without means to subsist upon during the prosecution of this suit, and to defray the necessary and proper expense thereof.

7. That defendant owns about three hundred acres of land, and that a fair rental value of said land with the stock and implements thereon is six hundred dollars per annum.

Upon consideration of the above facts, it is ordered and adjudged that the custody of the youngest child be committed to the plaintiff. It is further ordered and adjudged, that the defendant pay into court, for the use of the plaintiff, or to the plaintiff, the sum of one hundred and fifty dollars per annum pendente lite, and that the sum of seventy-five dollars be paid on or before the first day of July next, and that the sum of seventy-five dollars be paid on or before the first day of December next.

It is further ordered that the clerk of the Superior Court of Richmond county, issue a copy of this judgment to be served on the defendant, and that if he fails to commit the care of the youngest child to the custody of the plaintiff, or if he fails to pay the sums as above specified, notice shall issue to him to show cause why he shall not be attached for contempt.

From this judgment the defendant appealed, and filed the following exceptions:

The defendant, Daniel Lassiter, excepts to the order of His Honor, Judge Philips, allowing alimony and awarding the custody of the youngest child of plaintiff and defendant to the plaintiff, and assigns as errors in making said order:

(1). That the facts alleged in the complaint, after the condonation, are not stated with such definiteness and particularity, as is required in the petition for a divorce.

(2). That the facts alleged in the complaint, after the condonation, are not sufficient to obliterate the condonation, which is alleged in the complaint, and to revive the transactions alleged to have occurred before the separation or condonation.

(3). That the complaint does not state facts sufficient to entitle the plaintiff to a divorce.

(4). That His Honor refused to find, after being asked by defendant, the facts alleged in second allegation of complaint, viz.: as to whether the plaintiff was “a faithful, dutiful and obedient wife.”

(5). That His Honor found as a fact, “that plaintiff was forced by such treatment to leave defendant's house again;” meaning treatment after the condonation, when it had not been alleged in the complaint.

(6). That His Honor found as facts matters that are not sufficiently, definitely, and particularly alleged in the complaint, to-wit: all matters alleged since the first of May, 1883.

(7). That the allegations in the complaint and findings...