Overby v. Overby, 541

• Decision Date: 02 February 1968
• Docket Number: No. 541,541
• Court: North Carolina Supreme Court
• Parties: Robert C. OVERBY, Plaintiff, v. Lucille J. OVERBY, Defendant.

Page 799

158 S.E.2d 799

272 N.C. 636

Robert C. OVERBY, Plaintiff, v. Lucille J. OVERBY, Defendant.

No. 541.

Supreme Court of North Carolina.

Feb. 2, 1968.

Watkins & Edmundson, by R. Gene Edmundson, Oxford, and Johnson, Johnson & Poole, by Samuel Poole, Aberdeen, for defendant appellant.

Seawell, Van Camp & Morgan, by James R. Van Camp, Carthage, and William J. Morgan, Carthage, for plaintiff appellee.

PARKER, Chief Justice.

There is no controversy as to the first three issues. The court did not submit an issue as to defendant's claim for the $1,800 allegedly paid by her on the mobile home and the record shows no exception to this determination. Defendant's assignments of error relate to the evidence and charge on the questions of abandonment and entitlement to the lots.

Appellant assigns as error the failure of the court to charge the jury that if the plaintiff abandoned the defendant, he was not entitled to a divorce from her, and failure of the court to instruct the jury that abandonment imports willfulness. The record shows the following evidence relating to these questions.

Plaintiff and defendant were married in November, 1957. Both were residents of Moore County. No children were born of the marriage. At the time of the marriage, plaintiff was a part-time employee at McCain, North Carolina. Approximately six months later, he got a job in Burton, South Carolina, 240 miles away from McCain. He worked there for a year and a half. At the end of this period, he returned to work at McCain, sometime in 1960. While working in South Carolina, he usually came home on week ends.

In the fall of 1960, they purchased a house trailer and lived in it together in the country near McCain. Defendant was employed by the State of North Carolina as a nurse and worked at the McCain Sanatorium. On 25 July 1962, she was transferred to Butner, North Carolina, to work in the John Umstead Hospital. Defendant had living quarters at Butner. Plaintiff continued to live in the house trailer at McCain and to work at McCain for three or four months after defendant had moved to Butner. He was then transferred to a job on the North Carolina coast. In January, 1963, he was transferred to Morganton, North Carolina. After defendant moved to Butner, plaintiff would visit her there on week ends and holidays. The defendant visited plaintiff at McCain several times prior to his transfer to the coast.

In July, 1963, while plaintiff was employed in Morganton, he visited defendant in Butner and suggested that they enter into a separation agreement. Defendant's response to the proposal, as testified to by her, was: "I'll sign the separation papers, but, Bob, are you sure, is this what you want, that I'd rather you wouldn't do it.' I sit and talked with him for quite a while and I said, 'If you are sure that's what you want, and that's the way you feel, I'll sign separation papers.' I never did sign separation papers because he never brought them to me to sign. That was the last time I saw Mr. Overby.'

Plaintiff testified to several encounters with the defendant's former husband. One such occasion was described as follows: 'The next time I saw him there was about a year later, if I recall right. I went to work one morning and had to pay my car insurance and I realized I had left the papers at home, so I asked to be off to go pay the insurance and I went to the house to get my papers and when I drove up his car was sitting there again, and when I walked in he was sitting at the table eating breakfast with her. That was around 8:30.' Again, testifying as to marital difficulties, plaintiff said: 'I found out she was having men visitors and I came in one time and didn't park my car in the yard. I left it over across from the trailer behind some shrubbery and I was there about five minutes when this guy came in and I talked to her later about it and told her that I couldn't put up with those things. I found some letters too, and she told me one day if I didn't like it I would get out. It was the following May that she came and told me that she was out of a job at McCain and we talked about it and she told me she wanted to keep working for the State. I didn't want her to go off at Butner. That was the only chance of continuing her work for the State so she went on and stayed there.' In partial explanation of his reasons for desiring a separation agreement plaintiff stated: 'I went up there to get her to sign separation papers and told her I didn't want to live with her ex-husband around and other men coming around. That is my reason for it.'

On the question of abandonment the court instructed the jury, in part, as follows:

'Members of the jury, there is no hard and fast rule that I can give you to determine or define exactly what constitutes abandonment of one spouse by the other, but generally speaking, neither spouse is justified in withdrawing or leaving the other unless the conduct of the other is such as would likely render it impossible for the withdrawing spouse to continue the marital relation with safety, with health, or with self-respect. Otherwise, members of the jury, the separation of the parties would have to be mutual consent. In other words the law would not allow one to withdraw wilfully from the other without just cause or provocation and then come into court and seek a decree of absolute divorce based upon his or her own wrong.

'* * * I instruct you that if the defendant, Mrs. Overby, has satisfied you by the greater weight of the evidence that the plaintiff, Mr. Overby, wilfully discontinued living with her as husband and wife, and that he did this without just cause or adequate provocation from her, then it would be your duty to answer the fourth issue in favor of the defendant.'

In an action by the husband against his wife for an absolute divorce under G.S. § 50--6 on the ground of separation for the required statutory period, he is not required to establish that he is the injured party. If he alleges and establishes that he and his wife have lived separate and apart continuously for the required statutory period, one year or more next preceding the commencement of the action, her only defense is that the separation was caused by his act in willfully abandoning her. The wife must allege and establish his willful abandonment as an affirmative defense. Pickens v. Pickens, 258 N.C. 84, 127 S.E.2d 889; Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373; Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109; Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R.2d 436. The court correctly placed the burden of proof on this issue and defined abandonment in accordance with decisions of this Court. Pressley v. Pressley, 261 N.C. 326, 134 S.E.2d 609; Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923; Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540. Appellant's contention that abandonment imports willfulness is, in this case, an exercise in semantics. To the contrary, abandonment requires that the separation or withdrawal be done willfully and without just cause or provocation. The phrase was used in Workman v. Workman, 242 N.C. 726, 89 S.E.2d 390, in holding that a complaint in an action for alimony without divorce under G.S. § 50--16 was sufficient, when liberally construed, to withstand demurrer, and has no application here. These assignments of error are overruled.

Defendant testified, in substance, as follows regarding the purchase of the lots: In the fall of 1960, 'we' purchased a lot in Whispering Pines. The down payment of $500 was borrowed from the Citizens Bank and Trust Company of Southern Pines. Mr. Overby and I both probably paid that back to the bank.' The $500 was placed in defendant's individual account, and the down payment was made by a check drawn on her account. Subsequent installments were paid in the same manner. In May or June, 1960, the parties purchased a lot in Tranquil Harbour. A down payment of $30 was made, and subsequent installment payments were $10 per month. The monthly installments were paid by checks drawn on the defendant's individual account. She testified that she does not remember whether she or plaintiff made the down payment. The testified that she made 'practically' all the installment payments.

Concerning the handling of family finances, the plaintiff testified as follows: 'When I went to the bank to borrow money she signed the papers along with me * * *. Most of the money was deposited to her account because she wrote checks, paid the bills and I was always working and didn't have time to go off the job. So a lot of times she would work on the night shift and had the day off, you see, and most of the time we applied the money to her account so that she could write the check for it. Some of the money that was paid on the lots at Whispering Pines and one at Tranquil Harbour came through me. I'd say half of it did * * *. Prior to 1963, I paid all the money that was borrowed at the bank. I didn't make any payments to Mr. Pruitt. The agreement between me and her was she paid the payments on all the lots. We were fifty-fifty. If I pay the bank payment and payment on the mobile home, course, what money was left I helped her with other debts. We borrowed money at the bank and deposited most of it to her account and I paid the money back. ...