Moore v. Moore

• Decision Date: 18 April 1923
• Docket Number: 388.
• Citation: 117 S.E. 12,185 N.C. 332
• Parties: MOORE v. MOORE.
• Court: North Carolina Supreme Court

117 S.E. 12

185 N.C. 332

MOORE v. MOORE.

No. 388.

Supreme Court of North Carolina

April 18, 1923

Appeal from Superior Court, Guilford County; Harding, Judge.

Action under C. S. § 1667, as amended by Pub. Laws 1921, c. 123, by Neta Moore against James W. Moore, for subsistence without divorce. Subsistence pendente lite and counsel fees were allowed, and defendant appeals. No error.

Wilson & Frasier and Bynum, Hobgood & Alderman, all of Greensboro for appellant.

ADAMS J.

The plaintiff and the defendant intermarried on the 12th day of September, 1912. Thereafter the plaintiff brought suit in the superior court for alimony, alleging certain acts of cruelty on the part of the defendant, and on the 18th day of January 1922, the parties agreed upon and mutually executed a deed of separation, and a nonsuit was taken in the pending action. The case at bar was instituted on May 31, 1922. In her complaint the plaintiff alleges that the defendant fraudulently induced her to sign the deed of separation, that he paid her $400 in accordance with the terms of the deed more than half of which she returned to him immediately afterwards upon his promise to live with her in the relation of husband, and that they lived together as man and wife from January 18 to March 7, 1922, when the defendant willfully abandoned her, refusing to contribute anything to her support. The defendant denies almost all the material allegations of the complaint, and particularly pleads the former judgment and the deed of separation in bar of the plaintiff's recovery.

The judge made an order allowing the plaintiff $35 a month pendente lite and $200 as counsel fees. The defendant contends that this order is invalid and unenforceable on two grounds: (1) The court was without power to render the judgment; (2) the judge did not find any facts upon which the order was made to rest.

1. As the basis of the first objection the defendant contends that the deed of separation terminated the marital relation, or at any rate, that the defendant denies reassumption of the marital relation after the deed was executed, and that the undenied existence of the marital relation is essential to the maintenance of the plaintiff's suit.

The doctrine announced in Collins v. Collins, 62 N.C. 153, 93 Am. Dec. 606, has not uniformly been adhered to in the later decisions (Sparks v. Sparks, 94 N.C. 527; Archbell v. Archbell, 158 N.C. 409, 74 S.E. 327, Ann. Cas. 1913D, 261); but in relation to this position of the defendant there are several things suggested by the record that should not be overlooked. In the first place, the deed of separation is not made a part of the complaint or answer, and we have no present means of ascertaining its exact contents or of knowing whether the alleged agreement was reasonable, just, and fair to the plaintiff when considered with due regard to the circumstances of the parties at the time it was made, or whether upon the examination of the plaintiff it appeared that she had freely executed and consented to the agreement and that such agreement was not unreasonable or injurious to her. C. S. § 2515 ; Archbell v. Archbell, supra. Moreover, the plaintiff expressly alleges not only that the defendant fraudulently procured her execution of the articles of separation, but that immediately after affixing her signature, while she and the defendant were going in his car to the place of her residence, they effected a complete reconciliation of their differences and agreed thereafter to observe the marriage relation and live together as husband and wife. It is insisted in behalf of the plaintiff that the separation never actually took place, and that the deed for this reason, even in the absence of fraud, is of no effect. See authorities cited in note to Stephenson v. Osborne, 90 Am. Dec. 367. We need not discuss this proposition, however, for it has been definitely decided that if the parties resume the conjugal relation, the agreement is thereby rescinded. Smith v. King, 107 N.C. 273, 12 S.E. 57; Archbell v. Archbell, supra. "It is now well established as a general rule that a separation agreement is terminated for every purpose, in so far as it remains executory and contemplates the living apart of the spouses, where the parties subsequently become reconciled and return to cohabitation, and the duration of the reconciliation is immaterial." 9 R. C. L. 534 (355). If the restoration of the marriage relation rescinds the agreement the husband upon such restoration is charged with the legal duty of providing support for his wife. True, all the issues raised by the pleadings may ultimately be determined by the jury--including, of course, the question of the present marital relation--but in an application for subsistence as well as for alimony the judge finds the facts.

We are aware that prior to the Act of 1883, c. 67, in an application for alimony the complaint was taken to be true, and that in Zimmerman v. Zimmerman, 113 N.C. 433, 18 S.E. 335 the court sad, "The requirement that the judge should find such allegations of the complaint to be true as would entitle the plaintiff to the order was brought into the statute by the amendatory act of 1883," and further that the terms of the amendatory act are omitted from section 1667; but this section evidently contemplates the right of the defendant to be heard in opposition to the plaintiff's motion, and in Allen v. Allen, 180 N.C. 465, 105 S.E. 11, was apparently so construed. In the dissenting opinion in this case the practice in reference to...