Reynolds v. Reynolds, 124.

• Citation: 181 S.E. 338,208 N. C. 428
• Decision Date: 18 September 1935
• Docket Number: No. 124.,124.
• Court: North Carolina Supreme Court
• Parties: REYNOLDS. v. REYNOLDS.

181 S.E. 338

208 N. C. 428

REYNOLDS.

v.REYNOLDS.

No. 124.

Supreme Court of North Carolina.

Sept. 18, 1935.

Appeal from Superior Court, Buncombe County; Warlick, Judge.

Action for divorce by Robert A. Reynolds against Emma Reynolds. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for new trial.

Civil action for divorce on the ground of two years' separation, tried upon the usual issues, resulting in verdict for the plaintiff.

In bar of plaintiff's right to maintain the action, the defendant alleges:

"1. That the plaintiff's alleged cause of action as set forth in his complaint, to-wit two years of separation from his wife as grounds for absolute divorce, is based solely and exclusively upon a violation by himself of the criminal laws of the State of North Carolina and to the judgment of the court imposed upon the plaintiff in consequence of his conviction of the crimes of assault and battery upon his wife and for the wilful abandonment and nonsup-port by the plaintiff of his wife and their infant children, for which said violations of the criminal laws the plaintiff has heretofore been tried and convicted by a court of competent jurisdiction and is now undergoing execution of the sentence imposed by the court upon him for said crimes, that is to say: the plaintiff herein, as a condition imposed by the court upon which prayer for judgment would be continued or a sentence to imprisonment would be suspended, is living separate and apart from his wife and is paying into court from time to time certain sums of money for the support and maintenance of his said wife and their infant children.

"2. That the plaintiff, in violation and disregard of the orders of the court made in the criminal actions referred to in the preceding paragraph, has failed and neglected to make full payment of the amounts required to be paid for the support of his wife and their infant children, and at the time of the commencement of this action the plaintiff was in arrears to the extent of more than $140.00 on that account as well as $220.00 for hospital and medical bills."

The court ruled that the defense pleaded was no bar to the plaintiff's right to prosecute the action, and excluded the evidence offered by the defendant to prove her allegations. Exception.

From a judgment on the verdict dissolving the bonds of matrimony existing between the parties, the defendant appeals, assigning errors.

James E. Rector, of Asheville, for appellant.

Worth McKinney, of Asheville, for appellee.

STACY, Chief Justice.

May a husband ground an action for divorce, under Code 1931, § 1659 (a), as amended by Pub. Laws 1933, c. 163, on his own criminal conduct towards his wife? The answer is, no. Teasley v. Teasley, 205 N. C. 604, 172 S. E. 197. Any other holding would be a reproach to the law. Bean v. Detective Co., 206 N. C. 125, 173 S. E. 5. The...