Taylor v. Taylor

Decision Date28 March 1945
Docket NumberNo. 310.,310.
CourtNorth Carolina Supreme Court
PartiesTAYLOR. v. TAYLOR.

Appeal from Superior Court, Catawba County; J. C. Rudisill, Special Judge.

Action for absolute divorce by J. Otis Taylor against Bessie A. Taylor. From judgment of nonsuit, plaintiff appeals.

Reversed.

Civil action for absolute divorce on the ground of two years' separation.

The complaint alleges that plaintiff and defendant were married on November 13, 1924, and lived together as husband and wife until May 18, 1942, when they separated and have since continuously lived separate and apart; that two children were born of the marriage and are being supported by the plaintiff; that plaintiff now resides in Catawba County and has so resided for more than a year immediately preceding the commencement of this action on September 20, 1944, and that defendant is now a resident of Buncombe County.

The defendant admits the allegations of marriage and residence, but denies that there has been any separation within the meaning of the divorce statute. She further alleges wrongful abandonment and frequent "adultery with various women" on the part of the plaintiff, which has not been condoned by the defendant.

The evidence discloses that following a period of marital infelicity between the parties, the plaintiff finally went to Asheville on May 18, 1942, to see the defendant and while out driving notified her they would not try to live together any longer. Thereafter, all relations were severed, except the plaintiff continued to send her money for the support of herself and their two children. The oldest child is now married.

Plaintiff testified: "My wife was living with her people and she wouldn't live with me as a wife. * * * We separated in May, 1942, when she refused to live with me.

In answer, the defendant testified: "We certainly didn't mutually agree to live separate and apart." On May 18, 1942, "He said he was going to get a divorce. * * * I didn't give him any cause to abandon me." There was also evidence of plaintiff's association with other women.

From judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals, assigning errors.

J. C. Stroupe and Theodore F. Cummings, both of Hickory, for appellant. No counsel appearing for defendant.

STACY, Chief Justice.

The complaint alleges, and there is evidence tending to show, that plaintiff and defendant, who are husband and wife, "have lived separate and apart for two years" next immediately preceding the institution of the action, and that plaintiff "has resided in the state for a period of six months." G.S. § 50-6. Nothing else appearing, the establishment of these al-legations by proof would entitle the plaintiff to a divorce. Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549. The statute so provides. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466.

The language of the enactment is, that marriages may be dissolved and divorces granted "on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the state for a period of six months." G.S. § 50-6; Campbell v. Campbell, 207 N.C. 859, 176 S.E. 250.

It is also provided that when there is a minor child or children of the marriage, the name and age of such child or children shall be set forth in the complaint; and, if there be no minor child, the complaint shall so state. G.S. § 50-13.

The separation contemplated by the statute is apparently unrestricted. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444; Long v. Long, 206 N.C. 706, 175 S.E. 85. It is unnecessary to set out in the complaint the cause for the separation, or to allege that it was without fault on the part of the plaintiff, or to aver that it was by mutual agreement of the parties. Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97; Byers v. Byers, 222 N.C. 298, 22 S.E. 2d 902. "The plaintiff is not held bound to anticipate and negative in advance all grounds of defense to the action he brings, and petitions for divorce do not constitute an exception to the general rule." Steele v. Steele, 104 N.C. 631, 10 S.E. 707, 709. A separation by act of the parties, or one of them, or under order of court a mensa et thoro, suffices to meet the terms of the statute. Lockhart v. Lockhart, supra. See Dudley v. Dudley, N.C, 33 S.E.2d 489. It would not include an involuntary living apart, where there had been no previous separation, such as might arise from the incarceration or insanity of one of the parties. Sitterson v. Sitterson, 191 N.C. 319, 131 S.E. 641, 51 A.L.R. 760; Lee v. Lee, 182 N.C. 61, 108 S.E. 352.

Of course, the plaintiff may particularize as to the character of the separation by alleging that it was by mutual consent, abandonment, etc, in which event, if material to the cause of action, the burden would rest with the plaintiff to prove the case secundum allegata. Williams v. Williams, 224 N.C. 91, 29 S.E.2d 39; McOueen v. McQueen, 82 N.C. 471.

It is further provided by statute that the material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether actually denied by pleading or not, and no judgment is to be given in favor of the plaintiff until such facts are found by a...

To continue reading

Request your trial
28 cases
  • Romulus v. Romulus
    • United States
    • North Carolina Court of Appeals
    • September 20, 2011
    ...Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation. See Taylor v. Taylor, ante, [225 N.C.] 80 [33 S.E.2d 492 (1945) ].Id. at 86, 33 S.E.2d at 491 (citations omitted). Here, there was evidence that at times, the parties would have......
  • Cameron v. Cameron
    • United States
    • North Carolina Supreme Court
    • February 1, 1952
    ...G.S. § 50-6, he is not required to establish as a constituent element of his cause of action that he is the injured party. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492. Nevertheless, the law will not permit him to take advantage of his own wrong. Consequently, the wife may defeat the husban......
  • McLean v. McLean
    • United States
    • North Carolina Supreme Court
    • February 2, 1951
    ...two years' separation was alleged as grounds for divorce. G.S. § 50-6. Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902; Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492. In defendant's absence judgment was rendered in the County Court dissolving the bonds of matrimony between the parties for the re......
  • Pruett v. Pruett
    • United States
    • North Carolina Supreme Court
    • October 30, 1957
    ...or thistle need not expect to gather grapes or figs from it. ' In accord: Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471; Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492; Pearce v. Pearce, 226 N.C. 307, 37 S.E. 2d 904; Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109. See, also, Young v. Young, 22......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT