McIntyre v. McIntyre
| Citation | 191 S.E. 507,211 N.C. 698 |
| Decision Date | 09 June 1937 |
| Docket Number | 532. |
| Parties | McINTYRE v. McINTYRE. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Mecklenburg County; S. J. Ervin, Jr. Special Judge.
Action by Josie Ruth McIntyre against John G. McIntyre. From an adverse judgment, defendant appeals.
No error.
State resident who was defendant in suit for divorce and alimony could not set up as defense thereto invalidity of divorce decree which he obtained in another state dissolving previous marriage with former wife.
Action for divorce a mensa et thoro, and for alimony. Defendant pleaded the invalidity of his marriage with the plaintiff, on the ground that at the time of the marriage ceremony between them he had a living wife as result of a previous marriage and that a divorce obtained from his former wife by virtue of a decree in the state of Nevada was and is null and void for want of service on his former wife and lack of jurisdiction of the Nevada court, and that therefore he and the plaintiff were and are not legally married to each other.
Upon issues submitted, the jury rendered the following verdict:
"1. Was there a ceremony of marriage performed between the plaintiff and defendant on January 23, 1926, in accordance with the formalities prescribed by law? Answer: Yes.
2. Did the defendant, at the time of said contract of marriage, then have a living wife by a preceding marriage as alleged in the answer? Answer: No.
3. Did the defendant abandon the plaintiff, as alleged in the complaint? Answer: Yes."
It appeared from the evidence of the defendant that the defendant, John G. McIntyre, then and now a resident of North Carolina, married Cora Wyatt in 1920, and that thereafter the defendant went to the state of Nevada, for the purpose of obtaining a divorce and returning to North Carolina, and after remaining in Nevada nine months, secured a decree of absolute divorce from his wife Cora on September 3, 1925; that the Nevada divorce was based upon constructive service only, and no personal service was had upon nor general appearance entered by said Cora McIntyre; that defendant immediately returned to North Carolina, and on January 23, 1926, married the plaintiff, Josie Ruth McIntyre, having advised the plaintiff of the facts and believing the Nevada divorce in all respects legal.
There was evidence sufficient to sustain the verdict on the third issue that defendant abandoned the plaintiff.
Upon the second issue the court charged the jury in substance that the law of North Carolina prohibited the defendant from asserting the invalidity of a decree of divorce obtained by him in a foreign state, and that, since the burden of proof on the second issue was on the defendant, there being no evidence to warrant an affirmative answer, the jury should answer that issue "No."
To this instruction defendant in apt time excepted and now assigns same as error.
From judgment on the verdict, the defendant appealed.
J. L. Delaney, of Charlotte, for appellant.
Taliaferro & Clarkson, of Charlotte, for appellee.
The single question presented by this appeal is this: May a resident of the state, who is the defendant in a suit for alimony, be...
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