Smith v. Smith
Decision Date | 03 July 1979 |
Docket Number | No. 7821DC1017,7821DC1017 |
Citation | 42 N.C.App. 246,256 S.E.2d 282 |
Court | North Carolina Court of Appeals |
Parties | James A. SMITH v. Doris C. SMITH. |
Westmoreland & Sawyer by Rebecca L. Connelly and Barbara C. Westmoreland, Winston-Salem, for plaintiff-appellee.
Kennedy, Kennedy, Kennedy & Kennedy, Winston-Salem by Annie Brown Kennedy, Winston-Salem, for defendant-appellant.
Defendant contends that the trial court committed error in granting plaintiff an absolute divorce when the plaintiff's evidence and the defendant's evidence showed that the plaintiff was living in an adulterous relationship at the time of trial and had continuously lived in adultery since the separation of the parties. We find no error and affirm the judgment entered by the trial court.
Defendant contends that the central issue presented on this appeal is whether it was proper for the trial court to exclude all evidence tending to establish an adulterous relationship on the part of the plaintiff, because the defendant failed to file answer. We do not agree. To us, the central issue is whether recrimination is a defense at all to the plaintiff's action for absolute divorce.
G.S. 50-6 provided at the time of trial:
(Emphasis added.)
The change in the above statute became effective on 1 August 1977, a few months before the complaint was filed in this action. The statute is clear that "(a) plea of res judicata or of recrimination with respect to any provision of G.S. 50-5 shall not be a bar to either party obtaining a divorce on this ground . . . ." This sentence was rewritten by the General...
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Edwards v. Edwards
...Since the present action was filed on 10 July 1978, the defense of recrimination was not available to defendant. Smith v. Smith, 42 N.C.App. 246, 256 S.E.2d 282 (1979). Defendant in the case before us has argued that since some of the alleged adulterous acts on the part of the plaintiff occ......
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Boone v. Boone
...v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979); Gerringer v. Gerringer, 42 N.C.App. 580, 257 S.E.2d 98 (1979); Smith v. Smith, 42 N.C.App. 246, 256 S.E.2d 282 (1979). The trial judge properly struck the abandonment defense. His order Affirmed. WEBB and HARRY C. MARTIN, JJ., concur. ...