Medlin v. Medlin
| Decision Date | 08 May 1918 |
| Docket Number | 415. |
| Parties | MEDLIN v. MEDLIN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Union County; Harding, Judge.
Action by Berry Medlin against Ida Medlin, alias Ida Carter. On motion by defendant for allowance of alimony and expense money, expense money was adjudged, and plaintiff appeals. Affirmed.
The principal action is for divorce a vinculo, brought by the husband against the wife on account of her alleged adultery. Defendant answers, and under oath denied the alleged adultery and also filed a cross-bill for divorce from bed and board on the alleged ground that plaintiff had maliciously turned her out of doors. It appeared further that some time prior to the institution of the present suit the feme defendant had instituted an independent suit for alimony for her support under section 1567 of Revisal, alleging a wrongful abandonment by her husband. On issue joined in that suit there was verdict for the husband on the question of wrongful abandonment, and judgment denying alimony as prayed for.
On the present hearing, his honor was of opinion, and so ruled, that no alimony for support could be allowed by reason of the verdict and judgment in the former suit involving the same state of facts as those relied upon in defendant's cross-bill, but on affidavits duly filed the court found as pertinent facts:
That defendant has denied, under oath, the adultery charged against her in the complaint; that such, her denial, is made in good faith; that defendant is unable financially to employ counsel or to bring to the court the witnesses necessary for her proper defense; that plaintiff, her husband, is solvent and amply able to pay the sum of $150 and that said sum is a reasonable allowance for the purpose"
--and thereupon adjudged that plaintiff pay to the defendant the said sum of $150 expense money to enable her to defend the suit, from which judgment plaintiff, having duly excepted appealed.
Maness Armfield & Vann, of Monroe, for appellant.
Stock & Parker, of Monroe, for appellee.
HOKE, J. (after stating the facts as above).
Under recognized principles, we must approve his honor's ruling that no alimony can be allowed the defendant as an incident to her cross-bill, an application for divorce from bed and board because of her being maliciously turned out of doors, and for the reason given by him that in a separate and independent action for alimony under section 1567, Revisal, the facts involved in her present bill have been determined against the defendant and judgment entered denying her alimony for support. It is understood with us that a suit for divorce because of being maliciously turned out of doors under subsection 2, § 1562, Revisal, is but an instance of a wrongful abandonment provided for in subsection 1 of the statute, and the basic facts of these two suits being the same, the accepted principle is that an authoritative decision on the right of alimony will conclude the parties as to such right and as to the essential relevant facts existent at the time and involved in the inquiry. 1 Ruling Case Law, title Alimony, § 87, p. 940, and cases cited.
We concur also in his honor's decision awarding to defendant $150 expense money as an incident to the husband's suit against her for divorce on account of her alleged adultery; the defendant having formally denied the same under oath, and on the facts found by his honor:
"That defendant's denial and her desire to defend the suit are in good faith;" "that she is unable by reason of her poverty to prepare and present her defense; that her husband is able to furnish the same; and that the sum awarded is reasonable for the purpose."
On these facts, and under the rulings and precedents of the ecclesiastical courts in England having jurisdiction in matters of divorce and questions appertaining thereto, an award of a reasonable amount to enable the wife to properly present her defense was allowable in the sound discretion of the court, there usually as a part of the costs and very much on the principle that alimony for support was given. D'Aguilar v. D'Aguilar, 3 English Ecclesiastical Reports, 329-338. And these rulings and precedents, as a constituent part of the common law, were transported to the English-speaking colonies of this country and allowed to prevail here afterwards as the basis of our state jurisprudence to the extent that its principles were "not inconsistent with the genius of a free people," and except when abrogated or modified by constitutional or express statutory provision. And so considered, and as approved and applied by authoritative decisions here and elsewhere, they are in full support of his honor's ruling. Webber v. Webber, 79 N.C. 572; Crump v. Morgan, 38 N.C. 91, 40 Am. Dec. 447; Methvin v. Methvin, 15 Ga. 97, reported in 60 Am Dec. 664; Van Gordor v. Van Gordor, 54 Colo. 57, 129 P. 226, reported also in 44 L. R. A. (N. S.) 998; 1 Ruling Case Law, p. 910, title Alimony, § 57; Bishop on Marriage and Divorce and Separation...
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