McLean v. McLean, 750

• Decision Date: 30 January 1953
• Docket Number: No. 750,750
• Citation: 237 N.C. 122,74 S.E.2d 320
• Court: North Carolina Supreme Court
• Parties: McLEAN v. McLEAN.

Page 320

74 S.E.2d 320

237 N.C. 122

McLEAN v. McLEAN.

No. 750

Supreme Court of North Carolina.

Jan. 30, 1953

Young, Young & Gordon, Burlington, for plaintiff appellee.

W. R. Dalton, Jr., Burlington, for defendant appellant.

WINBORNE, Justice.

Defendant, as appellant, brings up for consideration twenty assignments of error. It is necessary, however, to give express consideration to these:

Assignments of error numbers 1 and 2, based upon exceptions to the denial of defendant's motions aptly made for judgments as of nonsuit, are untenable. The plaintiff having based his ground for divorce upon two years' separation, G.S. § 50-6, and defendant having averred by way of further defense and bar to this action, in substance, that whatever estrangement between the parties was occasioned by the plaintiff's own wrongful conduct and willful abandonment, the burden rests upon the defendant to establish the defense or defenses set up in the answer and relied upon by defendant. See Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492, where the authorities are cited. Hencemotion for judgment as of nonsuit was properly overruled. See Wharton v. New York Life Ins. Co., 178 N.C. 135, 100 S.E. 266; Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 194 S.E. 86; MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742; Barnes v. Security Life & Trust Co., 229 N.C. 409, 50 S.E.2d 2.

In the Barnes case in opinion by Barnhill, J., it is said: 'A judgment of nonsuit is never permissible in favor of the party having the burden of proof upon evidence offered by him.'

Moreover, there is no request for peremptory instruction.

However assignments of error eight, eleven, twelve and thirteen based upon exceptions, of same numbers, taken to portions of the charge of the court to the jury are well taken. These portions of the charge recognize the plea of plaintiff that his marriage to defendant was consummated under the agreement at the time, that they would get married and when the child was born they would then separate and get a divorce. And these portions of the charge permitted the jury, in passing upon the fourth issue, to take into consideration evidence offered by plaintiff in this respect. While it is noted that the record does not show that there was any motion to strike the allegation of the pleading, nor was there objection to the admission of the evidence, the plea and the evidence strike at the very foundation of the social life of the State, and are against public policy, of which the court of its own motion takes judicial notice. Plaintiff may not in this manner exculpate himself from fault after the marriage.

While it is true the portions of the charge to which these assignments relate are in the form of contentions--to which objection does not appear to have been made at the time they were given, and ordinarily an error in stating the contentions of a party should be called to the attention of the court in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence, State v. Smith, 221 N.C. 400 20 S.E.2d 360; State v. Brown, 227 N.C. 383, 42 S.E.2d 402; Williams v. Raines, 234 N.C. 452, 67 S.E.2d 343, it is the law in this State that the trial court should not at any time give an instruction which presents an erroneous view of the law, or an incorrect application of it. See State V. Hedgepeth, 230 N.C. 33, 51 S.E.2d 914; State v. Pillow, 234 N.C. 146, 66 S.E.2d 657.

In the Hedgepeth case [230 N.C. 33, 51 S.E.2d 916], in opinion by Barnhill, J., this Court declared: 'It is the duty of the court to explain and apply the law to the evidence in the case and set the minds of the jury at rest in respect to the principles of law which should guide them in arriving at a verdict. And so it should not at any time give an instruction, even in the form of a contention, which presents an erroneous view of the law or an incorrect application thereof.'

Moreover, if it be a fact that plaintiff has married under the mistaken impression that he had obtained a valid decree of divorce, the fact of such marriage may not enure to his benefit nor work to detriment of defendant in determining whether the alleged separation between plaintiff and defendant was caused by his fault.

And since there must be a new trial and other matters to which exception is taken may not then recur, other assignments of error are not considered.

Let there be a

New trial.

BARNHILL, Justice (concurring).

Trial marriage is unknown to the law of North Carolina. Yet, in my opinion, if we approve the trial in the court below, we lend our stamp of approval to that type of marriage contract.

Of course, theologically, marriage is a sacrament, but under the law it is a contract. And here we are concerned with it only as a contract sanctioned by law and with the conditions under which the status thereby created may be dissolved. But even when considered as a contract sanctioned by law, marriage is the keystone of our civilization without which organized society could not long exist. Its maintenance and protection are fundamentals of our public policy. It is so basic that the contract of marriage is set apart and treated as one entirely different from other contracts. It is to continue in force and effect from its inception to its dissolution by death or for a cause and in the manner prescribed by law.

The law as it now exists in this State does not sanction any modification or limitation upon the obligations it imposes by a prenuptial agreement except in respect to the property of the contracting parties.

But here we have a trial in which the plaintiff is permitted to meet the defense of abandonment by proof of a prenuptial agreement that the obligations imposed by the marriage should not be binding on either party.

Plaintiff testified that he left the defendant; that he did not want to live with her; that he wanted to marry another woman; that defendant repeatedly asked him to live with her, but that he refused; that he knew of nothing wrong that she had done; and that he had no complaint about her conduct. Thus, his own testimony entitled defendant to a peremptory instruction on the forth issue.

But no. There was a prenuptial agreement that the marriage should be nothing more than a farce and plaintiff may now justify what has heretofore been considered an abandonment by proving a prenuptial agreement to separate after marriage. Thus the prenuptial agreement modifies and takes precedence over the solemn contract of marriage. Certainly this was the theory...