Tyson v. Tyson, 670.

Decision Date21 May 1941
Docket NumberNo. 670.,670.
PartiesTYSON. v. TYSON.
CourtNorth Carolina Supreme Court

14 S.E.2d 673
219 N.C. 617

TYSON.
v.
TYSON.

No. 670.

Supreme Court of North Carolina.

May 21, 1941.


Appeal from Superior Court, Guilford County; Hubert E. Olive, Special Judge.

[14 S.E.2d 674]

Action for alimony without divorce by Edith Tyson against W. G. Tyson. From a judgment for plaintiff, defendant appeals.

No error.

The plaintiff brought an action against the defendant for alimony without divorce under C.S. § 1667, alleging indignities to her person, desertion, and nonsupport, and asked, as incidental relief, an allowance for support and attorneys' fees pendente lite, and for the permanent custody of her ten-year old child.

The defendant denied the main allegations of the complaint and set up, as a further defense, that a decree of absolute divorce had been granted him in a proceeding brought by him in a Florida Court. The plaintiff replied, alleging that the Florida decree was obtained through fraud upon the jurisdiction of that Court with respect to residential requirements, and was, therefore, void.

Upon the trial, plaintiff submitted evidence tending to establish the contentions in her pleadings and put in evidence a certified exemplified copy of the proceeding in the divorce suit brought by defendant Tyson in Duval County, Florida, including the affidavit for order of constructive service, showing that the defendant in that proceeding (plaintiff in this) was not a resident of the State of Florida. The certificate showed that service was made by publication in a newspaper published in Duval County, and by posting at the courthouse door.

Defendant introduced an exemplified copy of the final judgment or decree entered in the same proceeding, purporting to grant an absolute divorce.

The defendant, in apt time, moved for judgment as of nonsuit, which was refused, and defendant excepted. Issues were tendered by defendant and declined, and defendant excepted. Issues were submitted as to the fact of marriage, the separation, the indignities offered plaintiff, and fraud in procuring the Florida decree. Upon the third and fourth of these issues the defendant specially asked for an instruction that "if the jury find the facts, as the evidence tends to show", they will answer the issue "No", referred to as a request for a directed verdict. The Court declined to give the instruction and defendant excepted.

Other exceptions were made to various parts of the charge as given. Sufficient reference to these is made in the opinion.

The issues were answered in favor of the...

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