Pickens v. Pickens

• Decision Date: 07 November 1962
• Docket Number: No. 168,168
• Parties: Herbert C. PICKENS, Plaintiff, v. Margaret Leonard PICKENS, Defendant.
• Court: North Carolina Supreme Court

Page 889

127 S.E.2d 889

258 N.C. 84

Herbert C. PICKENS, Plaintiff, v. Margaret Leonard PICKENS, Defendant.

No. 168

Supreme Court of North Carolina.

Nov. 7, 1962

W. H. Childs, Jr., Lincolnton, for plaintiff appellee.

John R. Friday and C. E. Leatherman, Lincolnton, for defendant appellant.

BOBBITT, Justice.

Plaintiff alleged, as ground for absolute divorce under G.S. § 50-6, that he and defendant separated May 8, 1959, and thereafter lived continuously separate and apart from each other.

Answering, defendant denied plaintiff's said allegation and alleged, by way of further answer, defense and plea in bar, the following:

1. That plaintiff, in full recognition of his marital status and in discharge of his marital obligation to support his wife and children, has continued to support defendant and his two children and, during the past three years, has raised the amount of such support. These allegations bear upon whether there was a 'separation' as defined in our decisions. Williams v. Williams, 224 N.C. 91, 29 S.E.2d 39, and cases cited.

2. That, before and after the alleged date of separation, 'which has never been with the consent of this defendant, either express or implied,' plaintiff, without fault or provocation on the part of defendant, has, in respects set forth, 'offered such indignities to the person of this defendant and her two minor children as to render her and their lives intolerable and burdensome.' These allegations bear upon whether plaintiff was guilty of such misconduct as would entitle defendant to a divorce from bed and board under G.S. § 50-7 or to alimony without divorce under G.S. § 50-16. (Evidence offered in support of these allegations refers to plaintiff's conduct at various times when he was residing in the same household with his wife and children.)

Defendant did not seek, by cross action, a judgment for alimony without divorce. G.S. § 50-16. Her prayer was that plaintiff's action be dismissed.

G.S. § 50-6 creates 'an independent cause of divorce.' Byers v. Byers, 222 N.C. 298, 303, 22 S.E.2d 902, and Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466, where the history of this statute is set forth.

'Where the husband sues the wife for an absolute divorce upon the ground of two years' separation under G.S. 50-6, he is not required to establish as a constituent element of his cause of action that he is the injured party.' Johnson v. Johnson, 237 N.C. 383, 385, 75 S.E.2d 109, 111, and cases cited. If the husband alleges and establishes that he and his wife have lived separate and apart continuously for two years or more next preceding the commencement of the action within the meaning of G.S. § 50-6, the only defense recognized by our decisions is that the separation was caused by the act of the husband in wilfully abandoning her. To defeat the husband's case, the wife must allege and establish such wilful abandonment as an affirmative defense. Johnson v. Johnson, supra, and cases cited; Pruett v. Pruett, 247 N.C. 13, 25, 100 S.E.2d 296, and cases cited; Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492; McLean v. McLean, 237 N.C. 122, 125, 74 S.E.2d 320.

Here, defendant did not allege as an affirmative defense that the separation was caused by plaintiff's wilful abandonment of her. Nor did she allege the separation was caused by plaintiff's alleged misconduct at times when he resided in the same household with her and the children. She denied there had been 'a separation.'

As indicated, there was no basis in defendant's allegations for submission of the fourth issue. Hence, error, if any, with reference to the court's instructions bearing upon the fourth issue is not prejudicial to defendant; and Assignments of Error Nos. 4, 5 and 6 are overruled.

Assignment of Error No. 1 is formal.

The facts necessary to an understanding of Assignments of Error Nos. 2 and 3 are as follows:

Plaintiff and defendant were married June 6, 1946. Since July 26, 1948, plaintiff has been a member of the United States Coast Guard. Except for periods in 1955-1957, plaintiff has lived where stationed and defendant and the two children have lived in their home in Lincolnton. Plaintiff's evidence tends to show defendant refused to leave Lincolnton and live with him at the various places where he was stationed. Defendant's evidence tends to show that she was willing and wanted to live with him wherever he was stationed but plaintiff insisted that she live in Lincolnton.

All the evidence tends to show plaintiff and defendant lived 'separate and apart physically,' continuously from a date prior to May 8, 1959. See Mallard v. Mallard, 234 N.C. 654, 656, 68 S.E.2d 247, and cases cited.

As to Assignment of Error No. 2: Plaintiff testified on (first) cross-examination that he had cut the allotment to his wife but was forced to raise it again by the Coast Guard accountant. On (third) cross-examination, plaintiff again testified he had cut his wife's allotment. The record shows: 'Q. Then you later raised it, did you not? COURT: He raised it because he had to.'

While an exception to the court's said statement appears in the case on appeal, nothing appears to indicate defendant suggested that the judge correct his statement so as to clarify the intended meaning thereof, namely, that plaintiff had testified that '(h)e raised it because he had to.' Considered in context, we do not think the jury could have...