Pressley v. Pressley, 17

• Decision Date: 26 February 1964
• Docket Number: No. 17,17
• Citation: 261 N.C. 326,134 S.E.2d 609
• Court: North Carolina Supreme Court
• Parties: Hellen G. PRESSLEY v. Thomas D. PRESSLEY.

Page 609

134 S.E.2d 609

261 N.C. 326

Hellen G. PRESSLEY v. Thomas D. PRESSLEY.

No. 17

Supreme Court of North Carolina.

Feb. 26, 1964

Wade Hall, Asheville, for plaintiff appellant.

Ferguson & McDarris, by Frank D. Ferguson, Jr., Waynesville, and Lee, Lee & Cogburn, by Max O. Cogburn, Asheville, for defendant appellee.

PARKER, Justice.

Plaintiff is suing for alimony without divorce under G.S. § 50-16. By the terms of this statute, a wife may institute an action in the superior court to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband, if he 'be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board.' G.S. § 50-7 provides, 'The superior court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases: 1. If either party abandons his or her family; * * * 3. By cruel or barbarous treatment endangers the life of the other. 4. Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.'

The third issue submitted to the jury reads as follows: 'Did the defendant wilfully abandon the plaintiff and their minor child, as alleged in the complaint?' The jury answered this issue, 'No.' When the trial judge in his charge reached the third issue, he read it to them, instructed them that the burden of proof of this issue was upon plaintiff, that this issue is based on G.S. § 50-7, subd. 1, which provides that the superior court may grant divorces from bed and board on application of the party injured, if either party abandons his or her family, and then charged in substance that abandonment consists of the voluntary separation of one spouse from the other without the latter's consent, without justification and without the intention of returning, that it must be wilful, intentionally done, without just cause or justification. Then he immediately thereafter instructed the jury as follows, which is assigned as error:

'The court further instructs you that when the misconduct of the plaintiff, that is, the person who brings the action in an action of this nature, is calculated to and does reasonably induce the conduct of the defendant relied upon in this case, then the plaintiff could not be permitted to take advantage of the plaintiff's own wrong. You will note from the reading of that particular statute that remedy is available in cases to the husband for that matter as well as the wife. But in this case it is the wife bringing the action against the husband.'

In support of this challenged part of the charge, defendant relies upon what this Court said in Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466: 'We have also held that when the misconduct of the complaining party in an action for divorce a mensa et thoro is calculated to and does reasonably induce the conduct of the defendant, relied upon in the action, he or she, as the case may be, will not be permitted to take advantage of his or her own wrong, and the decree of divorcement will be denied. Page v. Page, 161 N.C. 170, 76 S.E. 619.'

In Page v. Page, 161 N.C. 170, 76 S.E. 619, it is said:

'If the cruelty set up as a ground of divorce was provoked by the misconduct of the complainant, a divorce will not be granted. 14 Cyc. 631. If his conduct had been such as to entitle her to a divorce, but was induced by the continued exasperation and violence of the wife, or other misconduct on her part, the same result would follow. There was no retaliation by the husband in this case, and certainly no excessive retaliation. Their domestic infelicity is apparently all due to the wife's misconduct. It is settled by our decisions that, where the wife is the aggressor and by her conduct provoked that of her husband, of which she complains, and it was calculated to do so, it is a bar to her application for a divorce and for alimony. [ Citing authority.] No one will be allowed to take advantage of his or her own wrong.'

Plaintiff contends in reply that defendant offered no evidence, and that there is nothing in plaintiff's evidence tending to show any misconduct on her part calculated to and reasonably inducing her husband to abandon her and their son. Defendant contends that 'the cross-examination of plaintiff yielded evidence bearing upon the conditions in the home of the parties and upon the conduct of the plaintiff as alleged in the answer' sufficient to support the challenged instruction, but none of this alleged evidence is set forth in his brief.

Plaint...