Taylor v. Taylor

• Decision Date: 09 May 1962
• Docket Number: No. 390,390
• Citation: 257 N.C. 130,125 S.E.2d 373
• Parties: Carlston F. TAYLOR v. June W. TAYLOR.
• Court: North Carolina Supreme Court

Page 373

125 S.E.2d 373

257 N.C. 130

Carlston F. TAYLOR v. June W. TAYLOR.

No. 390

Supreme Court of North Carolina.

May 9, 1962

Fred M. Parrish, Jr., Winston-Salem, for plaintiff appellant.

W. Scott Buck, Winston-Salem, for defendant appellee.

BOBBITT, Justice.

Plaintiff alleged that he and defendant lived together as husband and wife from their marriage on June 12, 1948, until their separation on June 18, 1958, and that they lived separate and apart continuously from June 18, 1958, until this action was instituted. These allegations show affirmatively there was only one 'separation,' namely, the 'separation' on June 18, 1958, and dispel any suggestion that plaintiff and defendant lived together thereafter. Thus, it appears the prosecution and conviction of plaintiff in the Municipal Court of the City of Winston-Salem on September 3, 1958, on a criminal warrant charging that he wifully abandoned defendant and their children without providing adequate support for them, necessarily relates to the 'separation' on June 18, 1958, on which plaintiff relies as a basis for his action for absolute divorce on the ground of two years separation.

Where the husband sues the wife under G.S. § 50-6 for an absolute divorce on the ground of two years separation, the wife may defeat the husband's action by alleging and establishing as an affirmative defense that the separation was caused by the husband's wilful abandonment of his wife. Johnson v. Johnson, 237 N.C. 383, 385, 75 S.E.2d 109, and cases cited; Pruett v. Pruett, 247 N.C. 13, 25, 100 S.E.2d 296, and cases cited. In such case, the burden of proof is on the defendant (wife) to establish her said affirmative defense. Taylor v. Taylor, 225 N.C. 80, 83, 33 S.E. 2d 492; McLean v. McLean, 237 N.C. 122, 125, 74 S.E.2d 320. She must do so by the greater weight of the evidence. Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540.

The said Municipal Court was a court of competent jurisdiction. Plaintiff could have, but did not appeal from his conviction and the judgment entered thereon. The issue raised by plaintiff's plea of not guilty in said criminal prosecution is the identical issue raised by plaintiff's denial of defendant's alleged affirmative defense or plea in bar. The only difference is that in the criminal prosecution the State had the burden of proving defendant's guilt beyond a reasonable doubt.

The question is whether plaintiff's admitted conviction in said criminal prosecution bars his right to maintain this action. More fully stated, the question is whether plaintiff can maintain an action for absolute divorce on the ground of two years separation when, in the criminal prosecution, it was established that the 'separation' on which he relies was caused by his criminal conduct in wilfully abandoning his wife and children without providing adequate support for them.

In Reynolds v. Reynolds, 208 N.C. 428, 181 S.E. 338, the defendant, as a bar to the plaintiff's action for absolute divorce on the ground of two years separation, pleaded the plaintiff's conviction in a court of competent jurisdiction of the crimes of assault and battery upon his wife and the wilful abandonment of his wife and their children. The trial court ruled that the defense pleaded was not a bar to the plaintiff's right to maintain the action and excluded the evidence offered by the defendant to prove her alleged affirmative defense or plea in bar. Upon the defendant's appeal from a judgment of absolute divorce, this Court held '(t)here was error in declining to hear the defendant's plea,' and set aside the verdict and judgment and remanded the cause for another hearing. Stacy, C. J., speaking for this Court, stated: 'To say that civil rights, enforceable through the courts, may inure to one out of his own violation of the criminal law, and against the very person injured, would be to blow hot and cold in the same breath, or, Janus-like, to look in both directions at the same time. The law is not interested in such double dealing or slight of hand performance; it sets its face like flint in the opposite direction.' (Our italics.)

In Brown v. Brown, 213 N.C. 347, 196 S.E. 333, the judgment dismissing the plaintiff's action for absolute divorce on the ground of two years separation was sustained. In the preliminary statement by Barnhill, J. (later C. J.), this appears: 'At the hearing the evidence tended to show that the plaintiff had been indicted and convicted of the crime of abandonment and nonsupport of his wife and his children begotten of her during coverture.' The fourth issue, answered, 'Yes,' was as follows: '4. Has the said separation of husband and wife been due to the criminal and unlawful acts of the husband, as alleged in the answer?' The record shows that Judge Grady, who presided at the trial, instructed the jury as follows: 'The record of the criminal proceeding in the Recorders Court in Pitt County has been offered in evidence; all of this evidence being certified to by the Clerk of the Superior Court of Pitt County, to the effect that Claud L. Brown was convicted in the Recorders Court of abandonment, and that a suspended sentence was placed upon him. Gentlemen, he would not be permitted to contradict the record which has been offered in evidence, and therefore I charge you that you will answer the fourth issue YES, so I will answer it for you, gentlemen, if you desire me to you will please raise your hand. (Jurors all raised their hands).' Thus, in substance, the court held that the plaintiff's conviction in the criminal prosecution constituted a bar to the plaintiff's action as a matter of law.

Reference to the record in Briggs v. Briggs, 215 N.C. 78, 1 S.E.2d 118, discloses that, in the criminal prosecution on the 1938 warrant referred to therein, Briggs, the plaintiff, was adjudged not guilty of the criminal abandonment of his wife; and the plaintiff was relying upon his acquittal in said criminal prosecution. 'The great weight of authority supports the rule that a judgment of acquittal is not effective under the doctrine of res judicata in later civil proceedings, and does not constitute a bar to a subsequent civil action involving the same subject matter.' 30A Am.Jur., Judgments § 474; Edwards v. Jenkins, 247 N.C. 565, 568, 101 S.E.2d 410. In a criminal action, an acquittal, while it denotes the failure of the prosecution to establish the defendant's guilt beyond a reasonable doubt, does not affirmatively establish the defendant's innocence.

Plaintiff relies on Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104, an action for wrongful death, in which the plaintiff alleged that, in a criminal prosecution for the murder of his intestate, the defendant was convicted of the crime of manslaughter. This Court held that the defendant's motion to strike these allegations should have been allowed because evidence in support thereof would have been incompetent.

Decision in Durham Bank & Trust Co. v. Pollard, supra, is based on '(t)he general and traditional rule supported by a great majority of the jurisdictions * * * that, in the absence of a statutory provision to the contrary, evidence of a conviction and of a judgment therein, or of an acquittal, rendered in a criminal prosecution, is not admissible in evidence in a purely civil action to establish the truth of the facts on which the verdict of guilty or of acquittal was rendered * * *.' However, in Durham Bank & Trust Co. v. Pollard, supra, the opinion of Parker, J., after...