Pharr v. Pharr

• Decision Date: 28 April 1943
• Docket Number: 521.
• Citation: 25 S.E.2d 471,223 N.C. 115
• Parties: PHARR v. PHARR.
• Court: North Carolina Supreme Court

25 S.E.2d 471

223 N.C. 115

PHARR v. PHARR.

No. 521.

Supreme Court of North Carolina

April 28, 1943

Plaintiff instituted this action for divorce a vinculo matrimonii on August 5, 1940, on the ground of two years' separation alleging that plaintiff and defendant were married in 1917 and by mutual agreement separated themselves from each other and executed a deed of separation on the 26th day of May 1940, and that they have lived separate and apart since the execution of said agreement.

The defendant filed an answer, admitted the execution of the agreement, but alleged that the execution thereof "Was brought about by reason of the fact that the plaintiff had abandoned the defendant, and she was required to sue him for adequate support, and the result was a written agreement whereby the plaintiff in this action agreed to support the defendant during her natural life, or until she remarried." And by way of further answer and defense, the defendant alleged that the separation of the plaintiff and defendant was not occasioned by any fault on the part of the defendant but as a result of the wrongful conduct of the plaintiff. Thereupon, the plaintiff moved to strike that portion of the answer quoted above and all of the further answer and defense. At the hearing on the motion, the defendant requested permission of the court to file an amended answer. Motion to strike was denied and defendant was granted permission to file an amended answer.

The amended answer as a further answer and defense, and by way of recrimination and in bar of plaintiff's right to recover a divorce in this action, alleges: That the plaintiff wilfully and wantonly abandoned the defendant in 1936, and that she was compelled to institute an action in the Buncombe County General Court against the plaintiff for abandonment and nonsupport. That by reason of her ill health, her want and need for hospitalization, she was induced to execute the separation agreement which provided for the payment of $75 per month for her support, which she alleges was wholly inadequate. It is further alleged that before and since the plaintiff and defendant separated the plaintiff committed adultery.

For a cross-action and by way of counterclaim, the defendant alleges she is entitled to counsel fees and an order requiring the plaintiff to pay to the defendant each month for her support an amount in keeping with his means and condition in life.

From the order denying plaintiff's motion to strike and allowing the defendant to file an amended answer, the plaintiff appeals, assigning error.

Jordan & Horner, of Asheville, for plaintiff.

James H. Dodgen, of Atlanta, Ga., and Joe W. Ervin, of Charlotte, for defendant.

DENNY Justice.

Plaintiff demurred ore tenus in this court, to the further answer and defense and to the cross-action.

The defendant in her amended further answer and defense pleads in bar of plaintiff's right to a divorce, his unlawful and wrongful abandonment and nonsupport of the defendant, and recrimination.

Under the decisions of this court either plea in bar, if sustained is sufficient to prevent the plaintiff from obtaining a divorce. In the case of Byers v. Byers, N.C., 25 S.E.2d 466, Stacy, C.J., reviews our decisions and statutes, dealing with separation as a ground for divorce, and says: "It is true, the statute under review provides that either party may sue for a divorce or for a dissolution of the bonds of matrimony, 'if and when the husband and wife have lived separate and apart for two years', etc. However, it is not to be supposed the General Assembly intended to authorize one spouse wilfully or wrongfully to abandon the other for a period of two years and then reward the faithless spouse a divorce for the wrong committed, in the face of a plea in bar based on such wrong." The foregoing is in...