Parker v. Parker, 750.

• Decision Date: 15 June 1936
• Docket Number: No. 750.,750.
• Citation: 210 N.C. 264,186 S.E. 346
• Court: North Carolina Supreme Court
• Parties: PARKER. v. PARKER.

186 S.E. 346

210 N.C. 264

PARKER.

v.PARKER.

No. 750.

Supreme Court of North Carolina.

June 15, 1936.

Appeal from Superior Court, Rockingham County; John H. Clement, Judge.

Action for divorce by Larkin Fuller Parker against Hattie Johnson Parker. From a judgment that the bonds of matrimony ex-isting between the parties be dissolved, defendant appeals.

New trial.

This is an action for divorce on the ground that after their marriage the plaintiff and the defendant separated from each other, and since such separation have lived separate and apart for more than two years.

The issues submitted to the jury were answered as follows:

"1. Were the plaintiff and the defendant married to each other as alleged in the complaint? Answer, Yes.

"2. Have the plaintiff and the defendant lived separate and apart from each other for a period of two years next preceding the institution of this action, and the filing of the complaint? Answer, Yes.

"3. Has the plaintiff been a resident and citizen of the State of North Carolina for one year next preceding the institution of this action? Answer, Yes.

"4. Has the plaintiff wilfully abandoned the defendant and failed to support her adequately? Answer, No."

From judgment that the bonds of matrimony heretofore existing between the plaintiff and the defendant be and that they are dissolved, the defendant appealed to the Supreme Court, assigning errors in the trial.

Pritchard & James, of Asheville, for appellant.

W. R. Dalton and P. W. Glidewell, both of Reidsville, for appellee.

CONNOR, Justice.

At the trial of this action, the court instructed the jury as follows: "The burden is on the plaintiff, gentlemen of the jury, to satisfy you by the greater weight of the evidence that he has lived separate and apart from the defendant for a period of two years or more, and if he has so satisfied you that he has lived separate and apart from her for a period of two years, or for a longer period than two years, then it will be your duty to answer the second issue, 'Yes'; otherwise you would answer the issue, 'No.' "

On her appeal to this court, the defendant assigns this instruction as error. The assignment is sustained.

The statute applicable to this action is chapter 72, Public Laws of North Carolina 1931, as amended by chapter 163, Public Laws of North Carolina 1933, and reads as follows: "Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in this state for a period of one year." N. C. Code 1935, § 1659(a).

This statute authorizes a divorce on the application...