Morris v. Morris

• Decision Date: 05 February 1980
• Docket Number: No. 7926DC529,7926DC529
• Citation: 45 N.C.App. 69,262 S.E.2d 359
• Court: North Carolina Court of Appeals
• Parties: Kent B. MORRIS v. Jeane Junker MORRIS.

Page 359

262 S.E.2d 359

45 N.C.App. 69

Kent B. MORRIS v. Jeane Junker MORRIS.

No. 7926DC529.

Court of Appeals of North Carolina.

Feb. 5, 1980.

Craighill, Rendleman, Clarkson, Ingle & Blythe, P. A. by John R. Ingle, Charlotte, for plaintiff-appellee.

Walker, Palmer & Miller, P. A. by James E. Walker and Robert P. Johnston, Charlotte, for defendant-appellant.

WELLS, Judge.

Defendant brings forward two assignments of error. She contends that the trial court erred in allowing plaintiff's motion to strike her defenses to his action for an absolute divorce and in denying her a jury trial.

In her answer, defendant admitted all of plaintiff's allegations necessary to obtain a divorce based on a one year separation of the parties under G.S. 50-6. Defendant argues that her allegations as to abandonment and indignities committed to her person constitute a defense to an action for absolute divorce. This argument has no merit under our present law. In 1977 the General Assembly amended G.S. 50-6. We considered the effects of that amendment in Edwards v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979), wherein we held that the defense of recrimination cannot be asserted in actions for absolute divorce instituted in this State after 31 July 1977. G.S. 50-6. It is clear that, as to divorces grounded on a one year separation of the parties, North Carolina is a "no-fault" jurisdiction; I. e., a showing that the parties have achieved the required periods of residency and separation is all that is necessary to obtain a divorce in this State under G.S. 50-6.

Defendant also argues that the trial court erred in not granting her request for jury trial in the divorce action. Prior to 1963, a verdict by a jury was required to support a judgment for absolute divorce in this State. Wicker v. Wicker, 255 N.C. 723, 122 S.E.2d 703 (1961). In 1963, the General Assembly amended the statutes to allow the trial judge to find the facts in actions for divorce based on the required period of separation of the parties. 1963 N.C.Sess.Laws, ch. 540. Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); Laws v. Laws, 1 N.C.App. 243, 161 S.E.2d 40 (1968). In 1971, the General Assembly again amended G.S. 50-10 to provide that the right to jury trial in such actions would be deemed waived unless demanded by one of the parties as provided in the Rules of Civil Procedure, and that in actions tried without a jury, "the presiding judge shall answer the issues and render judgment thereon." 1971 N.C.Sess.Laws, ch. 17. In 1973, the statute was again amended to allow the necessary facts to be found by either a judge or a jury. The 1973 amendment included the following sentence: "The determination of whether there is to be a jury trial or a trial before the judge without a jury shall be made in accordance with G.S. 1A-1, Rules 38 and 39." 1973 N.C.Sess.Laws, ch. 460.

Thus, it is clear that although the General Assembly has seen fit over the past two decades to significantly liberalize the divorce laws of our State, to the point where "no-fault" is the established law for divorces based on the separation of the parties, there yet remains as a part of our law the requirement for a jury to determine issues of fact about which there may be no dispute...