Pruett v. Pruett, No. 244

• Docket Nº: No. 244
• Citation: 247 N.C. 13, 100 S.E.2d 296
• Case Date: October 30, 1957
• Court: United States State Supreme Court of North Carolina

Page 296

100 S.E.2d 296 247 N.C. 13 Samuel Reid PRUETT
v.
Lucy Loraine PRUETT. No. 244 Supreme Court of North Carolina. Oct. 30, 1957

[247 N.C. 18] Charles T. Myers, Charlotte, for plaintiff-appellant.

Hugh M. McAulay, Charlotte, for defendant-appellee.

BOBBITT, Justice.

Plaintiff's exceptive assignment of error, 'That the Court erred * * * in finding the facts * * * as contained in Judgment,' is broadside. In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421. Moreover, plaintiff, in his brief makes no contention that the evidence was insufficient to support the findings of fact or any of them. Hence, we accept as established the facts as set forth in the court's findings. In re

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Estate of Cogdill, 246 N.C. 602, 99 S.E.2d 785.

The sole question for decision is whether the findings of fact and the facts appearing on the face of the record proper are sufficient in law to support the judgment.

The record of the trial on June 11, 1957, before Judge Moore, shows that the jury answered issues establishing the marriage and the required residence and in addition thereto answered this crucial issue: '2. Did the plaintiff, wilfully and without just cause, abandon the defendant and fail to provide adequate support for her, as alleged in the Further Answer and Defense of the defendant? Answer: Yes.' (Italics added.) The judgment, granting to defendant a divorce from bed and board, recites that the cause was heard 'upon the cross action of the defendant,' to wit, the issues raised by defendant's answer and plaintiff's reply thereto.

The grounds on which plaintiff based his motion to set aside Judge Moore's judgment of June 11, 1957, are these: (1) That defendant, in her cross action, failed to allege that the facts set forth therein as grounds for a divorce from bed and board had existed to her knowledge for at least six months next preceding the filing of her pleading, and that no issue relating to this essential allegation was submitted to the jury. (2) That defendant, in her cross action, purported only to set up a cause of action for divorce from bed and board under G.S. § 50-7(3), to wit, that by cruel and barbarous treatment he had endangered her life, and that her allegations were insufficient to state a cause of action on this ground. (3) That defendant, in her cross action, failed to allege that plaintiff abandoned her or that his conduct was wilful; that she failed to allege any specific time when she called on him for support or when he failed to provide adequate support; and that she failed 'to specifically set forth the circumstances under which the purported violence was committed, what her conduct was, and especially what she had done to provoke such conduct on the part of her husband.'

The verdict (second issue) established that plaintiff, wilfully and without just cause, abandoned defendant and failed to [247 N.C. 19] provide adequate support for her 'as alleged in the Further Answer and Defense of the defendant.'

Before examining the allegations of the cross action to determine what facts were alleged therein by defendant and established by the verdict, attention is called to the fact that the General Assembly, by Ch. 590, 1951 Session Laws, rewrote G.S. § 50-8. Prior to the 1951 Act, the court acquired no jurisdiction of an action for divorce, absolute or from bed and board, unless the plaintiff filed with the complaint an affidavit containing required statutory averments. Since such affidavit was a prerequisite to jurisdiction, the jurisdiction of the court was subject to challenge either before or after judgment on the ground that the required statutory averments, although set forth sufficiently, were in fact false. Upon such challenge, questions of fact to be resolved by the court were presented. Thus, the distinction was drawn between the material facts constituting the cause of action to be alleged in the complaint, which were for jury determination, and the jurisdictional facts required to be set forth in the affidavit, which were for court determination. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617, and cases cited.

The 1951 Act eliminated the requirement that such jurisdictional affidavit be filed with the complaint. The only requirement now is that 'in all actions for divorce the complaint shall be verified in accordance with the provisions of G.S. 1-145 and G.S. 1-148.' But the 1951 Act, now incorporated in G.S. § 50-8, to the extent pertinent here, specifically requires that the plaintiff shall set forth in his or her complaint that the plaintiff or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint, and

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that the facts set forth therein as grounds for divorce (except where the alleged cause for divorce is two years separation) have existed to his or her knowledge for at least six months prior to the filing of the complaint. Hence, to allege a cause of action for divorce, a plaintiff, in addition to one or more of the grounds for divorce specified in G.S. § 50-5 or G.S. § 50-7, must allege the additional material facts now required by G.S. § 50-8.

G.S. § 50-10, in pertinent part, provides: 'The material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a jury, * * *.' Consequently, upon the basic principle that a plaintiff must prove what he must allege, a plaintiff is entitled to a judgment of divorce only if the issues submitted and answered in favor of the plaintiff establish, inter alia, (1) the requisite facts as to residence, and (2) that (except[247 N.C. 20] where the alleged cause for divorce is two years separation) the facts set forth as grounds for divorce have existed to his or her knowledge for at least six months prior to the filing of the complaint. 'The pleadings in the action present the issues which should be submitted to a jury.' Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97, 98; Carpenter v. Carpenter, supra. Thus, the legal effect of the 1951 Act is that the allegations required to be set forth in the complaint are now indispensable constitutent elements of plaintiff's cause of action and the facts so alleged must be established by the verdict of a jury.

Here defendant's pleading was verified in accordance with the present statutory requirement. The court had jurisdiction of the parties and of the subject matter.

Plaintiff's counsel, present at the trial on June 11, 1957, did not object to the issues submitted by Judge Moore, nor did plaintiff appeal from the judgment based upon the verdict. If, as plaintiff now contends, defendant's pleading did not warrant the second issue, the submission thereof and hence the judgment based thereon were erroneous. In such case, upon expiration of the term at which the judgment was rendered, it could be corrected only by this Court; for, as stated by Professor McIntosh, 'after the term neither the judge who rendered the judgment nor another judge holding the court can set it aside for such error, and the only remedy is an appeal or a certiorari as a substitute for an appeal.' McIntosh, N.C.P. & P., p. 736; Mills v. Richardson, 240 N.C. 187, 191, 81 S.E.2d 409. Judge Moore's judgment could not be set aside for such alleged error of law by another superior court judge at a subsequent term, nor will it be reviewed by this Court for such alleged error of law in the...