Page v. Page

Decision Date11 December 1912
Citation76 S.E. 619,161 N.C. 170
PartiesPAGE v. PAGE.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Polk County; Toushee, Judge.

Action by Terisa E. Page against Joseph B. Page. From an order fixing alimony and counsel fees pending the suit and permitting plaintiff to see her children on specified times defendant appeals. Reversed.

An order granting to a wife suing for divorce the privilege of seeing the children of the marriage at designated times held proper as against the objection of the husband appealing from the order.

This is an action for divorce a mensa et thoro, and was before the court below at the last term, on a motion for alimony pendente lite, which was heard upon the complaint and answer read as affidavits, and also upon oral testimony taken before the court. The judge announced that in considering the matter he would accept the defendant's testimony as true, and we will so treat it in this court. Before the taking of testimony had closed, the defendant's counsel stated that he had a number of witnesses present in court, by whom he proposed to prove that the plaintiff was cross, disagreeable and erratic, and that she had often left home without cause or provocation on his part, and that she was so irritable disagreeable, and erratic as to keep his children continually in a state of consternation and fear, to all of which the defendant had testified. The judge refused to hear this evidence, on the ground that it only corroborated the defendant, and that it could not change his opinion, and that because of the crowded condition of the docket he had no time to hear it. The judge found the following facts: "(1) That the plaintiff and defendant were married July 18, 1895, and lived together until the month of June, 1911. That the plaintiff is 38 years of age, and the defendant 45. That they have two children, Paul and Eva, aged 12 and 4 years. (2) That the plaintiff is a weak, delicate woman, nervous and hysterical. That she has never been strong, and in September, 1910, went to the hospital for treatment. That several doctors prescribed for her during her married life, and one of them told defendant that if something were not done for her that she might lose her mind. That another physician cautioned her husband that she must not be permitted to do any hard labor, and he must not let her lift even the weight of a coffee pot. That the defendant did not provide her with a cook or laundress all the time, and she had to do some of the cooking and some of the washing. That plaintiff and defendant were members of the Baptist Church, having been reared therein, but about five years ago the plaintiff joined the Holiness Church, and since that time there has been friction between plaintiff and defendant; the latter not being willing for his children to go to the Holiness Church. That plaintiff's moral character is good. (3) That defendant is a hard working, industrious man, engaged in farming, and worth from $8,000 to $10,000. That he has always lived close and has accumulated property. That defendant thought his wife was obstinate and unreasonable. That in June, 1911, the defendant took his two children from his and plaintiff's home to the home of his parents at Tryon, four or five miles distant, and left them there, and since that time has declined and refused to permit plaintiff to see them. That plaintiff has tried four times to see the children, and on her last visit defendant's parents ordered her away and threatened to have her arrested by the town policeman. That a few Sundays before he took his children to his father's plaintiff was preparing to go to her own church, and had gotten the little girl dressed and ready to go, when defendant forbade her taking the little girl with her and forcibly prevented her from going with her mother. That defendant did not provide any buggy for the plaintiff to ride in to church, but left her to ride on a loaded wagon or walk, as she felt inclined. That defendant gave as his excuse that he had to use the buggy himself, and his wagon had to go to Landrum, where the plaintiff's church was situate. (4) That while the court does not believe that the defendant was intentionally unkind and cruel, yet his wife's condition was such that the result of his treatment was to render her life burdensome and her condition intolerable. It is therefore ordered that the defendant pay to the plaintiff the sum of $50, as an allowance for counsel fees, the same to be paid within 60 days; also, that he pay $25 per month, as alimony pendente lite, to begin with May 1st, and to continue until the further order of this court. It is further ordered that plaintiff be permitted to see her children on the second Sunday of each month between the hours of 9 a. m. and 5 p. m." Defendant excepted to this order and appealed.

Smith, Shipman & Justice, of Hendersonville, for appellant.

S. Gallert, of Rutherfordton, for appellee.

WALKER J. (after stating the facts as above).

The facts found by the court bear a very different aspect when read in connection with the testimony of the defendant. The court has acquitted the defendant of any intended wrong, and when all of the facts are considered, he was guilty of no wrong at all. The true significance of the facts, as found by the court, does not appear until we have heard all of the defendant's version, which we are to consider as true, according to the ruling of the court. The parties had lived together as man and wife for many years, and they had two children of their marriage, whose tender years required that they should receive careful nurture and admonition, and this, it seems, they did not get from their mother. We are to understand that she was "irritable, disagreeable, and erratic, and kept her children continually in a state of fear and consternation," for the defendant so testified, the judge has said. And to more did he testify. It appears, from what he said of this unfortunate domestic tragedy, that the plaintiff is of a testy disposition, "cross and ill-tempered," and exceedingly sensitive and exacting. We would not be willing to call her a virago or a termagant, even if the testimony shows that she was unruly and somewhat turbulent at times, for that would be harsh and unseemly, if not uncharitable, but prefer to use kind and gentle words, though her husband's evidence, which we are to take as true, is strongly against her and does not present her to the court in a very favorable light. There is nothing in the case to impeach the moral character or integrity of either one of the parties. The whole difficulty seems to have sprung from the wife's infirmity of temper, and we are not at all surprised that the court would not impute any intentional wrongdoing to the defendant. The three allegations of wrong are that she was weak and was required to work contrary to the advice of her physician; that she joined the Holiness Church, and defendant would not permit the children to attend the church, which caused friction between them; that he would not provide her with a buggy in which to ride to her church, and she was compelled to ride on a wagon; and, lastly, that defendant...

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