Owens v. Owens
Decision Date | 17 March 1976 |
Docket Number | No. 7515DC820,7515DC820 |
Citation | 28 N.C.App. 713,222 S.E.2d 704 |
Court | North Carolina Court of Appeals |
Parties | Alberta C. OWENS v. John R. OWENS. |
Smith, Patterson, Follin, Curtis & James by Marion G. Follin, III, Greensboro, Latham, Wood & Cooper by James F. Latham, Burlington, for plaintiff-appellee.
Seawell, Pollock, Fullenwider, Van Camp & Robbins, P.A., by James R. Van Camp and Bruce T. Cunningham, Jr., Carthage, for defendant-appellant.
Where adultery is pleaded in bar in an action for alimony or alimony pendente lite, an award will not be sustained in the absence of the finding of fact on the issue of adultery in favor of the party seeking the award. G.S. 50--16.6(a); Foster v. Foster, 25 N.C.App. 676, 214 S.E.2d 264 (1975).
In support of the trial court's ruling that the evidence of adultery by the plaintiff was not sufficient to submit to the jury, plaintiff contends that the defendant offered evidence of opportunity but not inclination, and relies on the following statement in Hicks v. Hicks, 4 N.C.App. 28, 35, 165 S.E.2d 681, 686, reversed on other grounds, 275 N.C. 370, 167 S.E.2d 761 (1969):
In support of this proposition of law Lee cites several treatises, including Nelson, Divorce and Annulment (2d Ed.).
In Nelson, Supra, § 5.14 it is stated:
But in § 5.15 the following appears:
Both 27A C.J.S. Divorce § 139(2)b. and 24 Am.Jur.2d, Divorce and Separation, § 369 substitute 'adulterous disposition' for 'inclination'. In 27A C.J.S., Supra, at 480, it is stated: 'In the absence of evidence of an adulterous inclination, proof of opportunity to commit adultery is not sufficient to establish the offense, Unless it occurs under incriminating circumstances.' (Emphasis added)
It appears from the language used in Nelson, Supra, § 5.15 that 'opportunity plus other improper circumstances indicative of the offense', and from the language used in 27A C.J.S., Supra, at 480, that 'proof of opportunity to commit adultery is not sufficient . . . unless it occurs under incriminating circumstances' do not sustain the hard and fast rule of law that if circumstantial evidence is relied on to establish adultery there must be evidence of both inclination and opportunity. Further, an examination of the cases cited by Nelson reveals that in many of them circumstantial evidence of adultery was held to be sufficient though there was no evidence of inclination or adulterous disposition. See Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965); Poole v. Poole (La.App.), 189 So.2d 75 (1966).
An examination of the cases in North Carolina, both civil and criminal, reveals that adultery may be proven by circumstantial evidence, that the evidence must be more than that which raises a suspicion or conjecture, and must show more than a mere opportunity. State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948); State v. Gordon, 225 N.C. 757, 36 S.E.2d 143 (1945); State v. Davenport, 225 N.C. 13, 33 S.E.2d 136 (1945); State v. Woodell, 211 N.C. 635, 191 S.E.2d 334 (...
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...or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations. Id. In Owens v. Owens, 28 N.C.App. 713, 222 S.E.2d 704, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976), the North Carolina Court of Appeals warned against adopting broad r......
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Estate of Trogdon, Matter of, No. 77A91
...or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations. Id. In Owens v. Owens, 28 N.C.App. 713, 222 S.E.2d 704, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976), the North Carolina Court of Appeals warned against adopting broad r......
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Estate of Trogdon, Matter of, 9021SC232
...together with improper circumstances, but without evidence of inclination, was sufficient to go to the jury. See Owens v. Owens, 28 N.C.App. 713, 716, 222 S.E.2d 704, 706, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976) (where the court said: "In some cases evidence of opportunity and......
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Wallace v. Wallace, 8321DC1098
...favor and reverse. The difficult issue of adultery has been the subject of two recent opinions of this court. In Owens v. Owens, 28 N.C.App. 713, 222 S.E.2d 704, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976), defendant husband asserted a defense of adultery to plaintiff wife's claim......