Mallard v. Mallard
| Decision Date | 12 December 1951 |
| Docket Number | No. 675,675 |
| Citation | 68 S.E.2d 247,234 N.C. 654 |
| Court | North Carolina Supreme Court |
| Parties | MALLARD, v. MALLARD. |
F. LeVerne Adams, Rowland and F. D. Hackett, Jr., Lumberton, for plaintiff, appellee.
Varser, McIntyre & Henry, Lumberton, for defendant, appellant.
While the third issue is phrased in the language of G.S. § 50-5(4), the plaintiff bottoms his case on G.S. § 50-6. Moreover, the record reveals that the action was tried under the last mentioned statute in the court below.
G.S. § 50-6 specifies that '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 two years, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.'
A husband and wife live separate and apart for the prescribed period within the meaning of G.S. § 50-6 when, and only when, these two conditions concur: (1) They live separate and apart physically for an uninterrupted period of two years; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Moody v. Moody, 225 N.C. 89, 33 S.E.2d 491; Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902.
The testimony adduced by plaintiff is sufficient to establish that each of these things existed at the commencement of the action: That the plaintiff and defendant were husband and wife; that both of them had resided in the State for a period of six months; and that they had lived separate and apart within the meaning of the statute for an uninterrupted period of two years. This being true, the trial judge rightly refused to nonsuit the action. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492.
The defendant assigns as error various portions of the charge in which the judge instructed the jury without explanation or qualification to answer the third issue in favor of the plaintiff, i. e., in the affirmative, in the event it found by the greater weight of the evidence that the plaintiff separated from his wife in the early part of January, 1948, with her consent or knowledge, and remained separate and apart from her for two years. Since the charge is designed to aid the jury clearly to comprehend the case and to arrive at a correct verdict, this instruction must be held for error on the testimony in the instant action. Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484.
There is sharp conflict between the evidence of the plaintiff and that of the defendant respecting the character of...
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Romulus v. Romulus
...to cease the matrimonial cohabitation.” Myers v. Myers, 62 N.C.App. 291, 294, 302 S.E.2d 476, 479 (1983) (citing Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951) and Earles v. Earles, 29 N.C.App. 348, 224 S.E.2d 284 (1976)). Further, [i]n addressing whether a husband and wife have liv......
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State v. Kluckhohn, 442
...law applicable to his contentions as to what occurred, if the jury should find his version of what occurred to be true. Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247; State v. Sherian, 234 N.C. 30, 65 S.E.2d 331; State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53; State v. Herbin, 232 N.C. 318, ......
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Richardson v. Richardson, 169
...is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation.' Mallard v. Mallard, 234 N.C. 654, 656, 68 S.E.2d 247, 248, and cases cited. All the evidence tends to show both plaintiff and defendant, when they separated on February 29, 1960, int......
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Moody v. Moody, 521
...by the law as a cause for divorce in fixing the period of separation.' 222 N.C. 304, 22 S.E.2d at page 906. See also Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247; Young v. Young, 225 N.C. 340, 34 S.E.2d Lawson v. Bennett, 240 N.C. 52, 81 S.E.2d 162, involves an action for absolute divorc......