Panhorst v. Panhorst
| Decision Date | 20 January 1971 |
| Docket Number | No. 60,60 |
| Parties | Kennette Frazier PANHORST v. George M. PANHORST, Jr. |
| Court | North Carolina Supreme Court |
Thomas Walton and William J. Cocke, Ashville, for plaintiff appellant.
Robert E. Riddle, Asheville, for defendant appellee.
The jury was instructed, 'If you answer the first issue NO, and thereby find that the defendant did not abandon the plaintiff, As the Court has instructed you with reference to that issue, then you would not come to consider the second issue * * *.' (Emphasis added.) That is, in that event, the jury would not consider the issue of whether such abandonment was or was not without adequate cause or provocation on the part of the plaintiff.
The verdict on the first issue was reached in the light of this instruction:
'Ordinarily, * * * the spouse who separates or leaves is not justified in leaving the other spouse unless the conduct of the spouse who is left is such as would likely render it impossible for the withdrawing spouse to continue the marital relationship with safety, health and self-respect, and so, members of the jury, the Court instructs you that when you come to consider the first issue, the burden of proof, as the Court has told you, is upon the plaintiff upon this issue and when you come to consider this first issue the Court instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that in October, 1968, the defendant separated himself from the plaintiff and that this separation was without the consent of the plaintiff and that this separation was without the intention on the part of the defendant of renewing the marital relationship and that this separation was brought about without the existence of circumstances which would justify the defendant in withdrawing, that is, was absent such circumstances as would make it impossible for the withdrawing spouse, the defendant, to continue the marital relations with safety, health and self-respect; if the plaintiff has satisfied you of each of these elements from the evidence and by its greater weight, then it would be your duty to answer the first issue YES.
'On the other hand, * * * if the plaintiff has failed to satisfy you from the evidence by its greater weight as to each of these elements, then it would be your duty to answer the first issue NO.'
The plaintiff assigned this instruction as error and also assigned as error that the court had failed to declare and explain the law arising upon the evidence, as required under G.S. § 1--180. (See, Rule 51(a), Rules of Civil Procedure.) Both of these assignments of error were allowed by the Superior Court in ordering a new trial. The Court of Appeals reversed on the ground that the plaintiff did not set out in her exception and assignment of error her contention as to what the court should have charged.
It is alleged in the complaint and admitted in the answer that the plaintiff and defendant were married and lived together until 9 October 1968, when the defendant left the home. The defendant's own testimony makes it clear that he left with no intent to return, though the plaintiff begged him not to do so. The sole question presented by the pleadings and the evidence related to whether he was legally justified in leaving and thus was absolved from the duty of paying alimony pursuant to G.S. § 50--16.2(4). The plaintiff's testimony, if believed by the jury, is sufficient to establish that the cause of the condition, which the defendant assigns as the only reason for leaving, was her affliction with a physical ailment for which she was and had been for a long time undergoing medical treatment. The defendant's testimony was to the effect that he, when leaving, was aware that she had some physical difficulty for which she was undergoing medical treatment. Nowhere in the charge, except in revewing the testimony, is there any specific reference to the physical condition or health of the plaintiff. The...
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