Oliver v. Oliver

• Decision Date: 19 March 1941
• Docket Number: 168.
• Parties: OLIVER v. OLIVER.
• Court: North Carolina Supreme Court

13 S.E.2d 549

219 N.C. 299

OLIVER v. OLIVER.

No. 168.

Supreme Court of North Carolina

March 19, 1941

Civil action instituted May 22, 1940, for absolute divorce upon ground of two years' separation. P.L.1931, Chapter 72, as amended by P.L.1933, Chapter 163, as amended by P.L.1937 Chapter 100.

Plaintiff in his complaint alleges: (1) That he and defendant were married at Hartwell, Ohio, on June 15, 1910; (2) that he and she separated in June, 1936, through no fault of his, and have since lived separate and apart, that is, for more than two successive years next preceding institution of this action (3) that he is and for more than one year next preceding the bringing of this action has been a resident of the State of North Carolina; and (4) defendant is a resident of Tennessee.

Defendant in answer filed admits the fact of marriage as alleged but denies all other allegations of the complaint, and further avers that plaintiff having deserted and separated himself from her without provocation, excuse or justification, or any fault on her part, and against her will, and having willfully abandoned her without providing adequate support, is not the injured party.

Defendant moved for order allowing alimony pendente lite and counsel fees. Upon such motion the court, "finding as a fact that the defendant is not without sufficient means whereon to subsist during the prosecution of the suit and to defray the necessary and proper expenses thereto, but is receiving the sum of $20.13 disability benefits from an insurance policy of plaintiff, and is earning approximately $120.00 as a civil service employee, and has equal, if not greater, means of support than the plaintiff and is not entitled to an order for alimony pendente lite", denied the motion. Exception.

Upon the trial in Superior Court plaintiff offered evidence tending to show substantially these facts: That he and defendant were married in the year 1910 as alleged in the complaint; that he suffered financial reverses in 1924; that in the latter part of 1930 he had a physical breakdown and his health failed, requiring hospitalization at Veterans Hospital in Illinois; that afterward he lived in Ohio, at Dayton, then in Cincinnati and again in Dayton; that while in Dayton he and his wife had discussion about their marital affairs, and both agreed that they were incompatible and ill-mated and could not get along together; that in May 1936, he left Dayton and came to Penrose in Transylvania County, North Carolina, in search of health; that when he left his wife bade him a friendly goodbye at the bus station and he told her where he was going; that his wife, who had been working for several years prior to his financial reverses and had been working since that time, continued to work in Dayton; that in June, 1936, his wife, "at her own invitation", came to visit him and they spent their twenty-fifth anniversary together; that he next saw her in Dayton, Ohio, the latter part of December, 1936, while en route North to visit his sister and to attend an art school in Philadelphia; that when he went to Dayton on this trip he and she discussed their differences, he testifying that "we agreed that we belonged to two different schools of thought, the defendant a Catholic and I a Protestant. We came to a very definite understanding that we would live apart because we were ill-mated and incompatible. We had not lived together as man and wife and had occupied different beds for years prior to 1936. There was no change in that respect between June, 1936, and December, 1936"; that in early part of 1937 he attended an art school in Philadelphia; that while there on April 13, he wrote his wife that he expected to go by bus the first week in June via Dayton on his return to Penrose for the purpose of discussing their "affairs in life" which he believes, she must agree, should "take on a definite understanding, instead of permitting them to drift on and on, as they have been doing"; that he had "decided after mature deliberation that it is best for us to live apart"; that on May 1, 1937, his wife replied that she thought his idea of a friendly separation a very sensible one and that she would consent to such a separation without a divorce, and in closing stated "As to your coming to Dayton on your way to Penrose, I would much prefer that you do not do so. Anything we have to say to each other can better be said by mail. I knew when I said goodbye to you at Christmas time that it was a final goodbye. Our parting was friendly and not sad and I would like to keep that in mind as our goodbye"; that when school closed in May, 1937, he returned to Brevard and lived there; that in May, 1939, he suffered a stroke of paralysis and was taken to Veterans' Administration Hospital at Oteen, North Carolina; that over his protest his wife came there; that in September, 1939, after he left the hospital he sold his home in Brevard, for which he was paying in monthly installments, and upon advice of "his ward surgeon" went to Florida for the winter for his health; that, after cold weather had ended in the spring, he went from Florida to Charleston, South Carolina, for several weeks, then to Columbia, South Carolina, for a few days, then to Weaverville, North Carolina, for a visit, then to the Y. M. C. A. in Asheville in June, 1940, and then back to Brevard in July, 1940; that when he came to Transylvania County, North Carolina, in 1936, he intended and decided to become a resident of that county; that when he went to Philadelphia in 1937 he intended to return to North Carolina, and did return and bought a home in Brevard after that time; that he registered and voted in Transylvania County in the general election in 1938; that when he went to Florida in 1939, it was for his health and upon advice of his ward surgeon; that he intended to stay only for the winter and intended, and did, return to Transylvania County.

Defendant offered evidence tending to show that she never agreed to a severance of marital relations; that there was no discussion about that either in Penrose in June, 1936, when they had "a very happy vacation together" or when plaintiff visited her for a week or so at Dayton in December, 1936; that plaintiff wrote to her almost daily while he was visiting his sister and after he went to the art school in Philadelphia, many of the letters being offered in evidence; that while his letter of April 13, 1937, surprised and shocked her, she admits writing him the letter of May 1, 1937; that the next time she saw him was in 1939, when on being informed by Mr. Moore of Brevard that plaintiff had suffered a stroke, she came down "over his protest and in spite of it". Defendant testified: "It was against my principles, but I agreed for him to leave me in 1936. I consented in 1937 to let him live separate from me; I had no choice in the matter".

Further evidence was introduced on the part of the plaintiff tending to show that the separation was by mutual agreement. On the other hand, much evidence was introduced by defendant tending to show that there was no mutual agreement to separate, and that in her letter of May 1, 1937, she consented to separation only, without divorce. Likewise, much testimony was introduced with respect to the war insurance policies, payment of part of premiums by defendant and the assignment to her of part of the benefits.

At the close of evidence the court in its discretion permitted plaintiff to amend his complaint to...