Tan v. Tan

• Decision Date: 18 November 1980
• Docket Number: No. 805DC375,805DC375
• Court: North Carolina Court of Appeals
• Parties: Gwendolyn S. TAN v. Ricardo M. TAN.

Page 11

272 S.E.2d 11

49 N.C.App. 516

Gwendolyn S. TAN v. Ricardo M. TAN.

No. 805DC375.

Court of Appeals of North Carolina.

Nov. 18, 1980.

W. G. Smith and Bruce Holt Jackson, Jr., Wilmington, for plaintiff-appellee.

James L. Nelson and James D. Smith, Wilmington, for defendant-appellant.

HEDRICK, Judge.

By his second, sixth, and eighteenth assignments of error, defendant contends the court erred in denying his motions for a directed verdict pursuant to G.S. § 1A-1, Rule 50 and in thereafter submitting the issue of abandonment to the jury. We disagree. We first note that we need not consider defendant's motion for a directed verdict at the close of plaintiff's evidence, as defendant chose thereafter to present evidence in his favor. See Hodges v. Hodges, 37 N.C.App. 459, 246 S.E.2d 812 (1978). In considering defendant's other motions for a directed verdict, the evidence is to be considered in the light most favorable to plaintiff, and plaintiff is entitled to all reasonable inferences that can be drawn from that evidence. Snow v. Duke Power Co., 297 N.C. 591, 256 S.E.2d 227 (1979); Murray v. Murray, 296 N.C. 405, 250 S.E.2d 276 (1979). G.S. § 50-16.2(4) provides as follows: "A dependent spouse is entitled to an order for alimony when: ... (4) The supporting spouse abandons the dependent spouse." One spouse abandons the other within the meaning of G.S. § 50-16.2(4) where he or she brings their cohabitation to an end without justification, without consent of the other spouse and without intent of renewing cohabitation. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Powell v. Powell, 25 N.C.App. 695, 214 S.E.2d 808 (1975). We are of the view that the evidence in this case, when considered in the light most favorable to plaintiff, was sufficient to raise a factual question as to the issue of abandonment, and thus the court properly submitted that issue to the jury. Plaintiff's testimony tended to show that ten days before he moved out, defendant was staying out very late at night, and on one occasion did not come home at all. Several days later, defendant phoned plaintiff from his office to tell her that he was getting an apartment. Defendant thereafter moved all of his belongings out of the marital home. Plaintiff testified further that she did not do anything to cause him to leave home and that she never wrote him a note or told him to move out of the house. In addition, defendant and plaintiff had not discussed separation in the week prior to the day defendant moved out.

Despite this, defendant contends that evidence that the spouse was spending little time with his family, that the spouse would come home late at night and leave when he got up in the morning, and that the spouse finally told the other that she "made him sick" and left the family home with all his personal belongings, was not sufficient to support a finding and conclusion of abandonment in Holt v. Holt, 29 N.C.App. 124, 223 S.E.2d 542 (1976), and thus similar evidence in the present case should preclude submission of the issue of abandonment to the jury. Defendant, however, has misinterpreted the court's holding in Holt v. Holt, supra. The court in Holt did indeed find that the record did not support a finding of abandonment, but the facts in that case indicated that the parties resumed cohabitation sometime after the defendant moved out, and thus one of the essential elements of abandonment set forth in Panhorst v. Panhorst, supra, that of no intention of resuming cohabitation, was not present. Clearly, on the facts of the present case, defendant had no intention to resume living with plaintiff; defendant had already contacted the telephone company and the electric company to change the billing address when he notified plaintiff of his intention to move out. We also believe that the court in Holt v. Holt, supra, was influenced by the fact that plaintiff there did not controvert defendant's contention as to the insufficiency of evidence of abandonment. Moreover, since there is no all-inclusive definition as to what will justify abandonment, each case must be determined in large measure upon its own circumstances. Heilman v. Heilman, 24 N.C.App. 11, 210 S.E.2d 69 (1974). These assignments of error have no merit.

Defendant's fourth, fifth, seventeenth, and eighteenth assignments of error relate to the court's instructions to the jury. First, defendant argues that the court did not correctly explain the law of abandonment. " This assignment of error is based upon a broadside exception to the charge, and such an exception does not comply with the dictates of Rule 10(b)(2) of the Rules of Appellate Procedure. State v. Freeman, 295 N.C. 210, 244 S.E.2d 680 (1978). As such, this exception will not be considered. Rule 10(a), Rules of Appellate Procedure; State v. Graham, 35 N.C.App. 700, 242 S.E.2d 512 (1978). Second, defendant argues that the court erred in not instructing the jury as requested with respect to the issue of abandonment. The court's refusal to submit requested instructions is not error when the instructions given fully and fairly present the issues in controversy. Clemons v. Lewis, 23 N.C.App. 488, 209 S.E.2d 291 (1974). We have reviewed the instructions given on abandonment in light of defendant's requested instructions, and find that the court fully and fairly instructed the jury on the issue of abandonment. Assignments of Error Nos. 17 and 18 are based on exceptions to the entry of the judgment and to the denial of defendant's post-trial motions for judgment notwithstanding the verdict, new trial, and relief from the judgment. These assignments of error raise no questions not heretofore discussed, and are without merit.

We have reviewed defendant's other assignments of error addressed to the trial on the issue of abandonment and find them to be without merit. In the trial on the issue of abandonment, we find no error.

Based on his ninth, thirteenth, seventeenth, and eighteenth assignments of error, defendant argues that the order requiring defendant to pay plaintiff's attorney's fees in this action was "fatally...