Wallace v. Wallace, 8321DC1098

• Citation: 70 N.C.App. 458,319 S.E.2d 680
• Decision Date: 18 September 1984
• Docket Number: No. 8321DC1098,8321DC1098
• Parties: Georgia Marie WALLACE v. Bruce Evans WALLACE.
• Court: North Carolina Court of Appeals

Page 680

319 S.E.2d 680

70 N.C.App. 458

Georgia Marie WALLACE v. Bruce Evans WALLACE.

No. 8321DC1098.

Court of Appeals of North Carolina.

Sept. 18, 1984.

White & Crumpler by Fred G. Crumpler, Jr., G. Edgar Parker, Daniel E. O'Toole, and Randolph M. James, Winston-Salem, for plaintiff.

Clyde C. Randolph, Jr. and David F. Tamer, Winston-Salem, for defendant.

WELLS, Judge.

The sole issue we decide in this case is whether the trial court erred in failing to grant defendant's motion for a directed verdict on the issue of adultery. We decide this issue in defendant's favor and reverse.

The difficult issue of adultery has been the subject of two recent opinions of this court.

In Owens v. Owens, 28 N.C.App. 713, 222 S.E.2d 704, disc. rev. denied, 290 N.C. 95, 225 S.E.2d 324 (1976), defendant husband asserted a defense of adultery to plaintiff wife's claim for alimony. Defendant's evidence tended to show that plaintiff wife had lived with another man for two months. The trial court refused to submit an issue as to plaintiff wife's adultery. In reversing, the Owens court discussed at some length conflicts among the authorities on the level of proof required to establish adultery, concluding that while adultery may be proven by circumstantial evidence, such evidence must be more than that which raises a suspicion or conjecture and must show more than mere opportunity. The court summed up its holding as follows:

We consider it unwise to adopt general rules as to what will or will not constitute proof of adultery, but the determination must be made with reference to the facts of each case. In some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse.... If so, the evidence should be submitted on an issue of adultery to the jury so that it may judge the probative force of the evidence. [Citation omitted].

In Horney v. Horney, 56 N.C.App. 725, 289 S.E.2d 868 (1982), plaintiff wife, in her action for divorce, asserted adultery on the part of defendant husband. Plaintiff wife's evidence tended to show that defendant husband had a friendly relationship with another woman, with whom he was alone together on several occasions in the woman's office and on at least one occasion in the woman's home; defendant husband refused to sleep with plaintiff wife and was often away in the evenings; and defendant husband once offered plaintiff wife $10,000.00 if she would let him see his girl friend. In reversing, the court in Horney recognized that circumstantial evidence may be sufficient to support a finding of adultery, but concluded that the lack of a clear evidentiary standard in such cases had resulted in trial by "suspicion and conjecture." The court's comments in Horney upon Owens v. Owens, supra, can only be regarded as placing Owens in the trial by "suspicion and conjecture" category. ¹

Following its discussion of what it perceived to be the unsatisfactory state of affairs in the law of adultery, the court in Horney concluded:

Given the highly emotional nature of the subject matter, and the degree to which individual jurors' attitudes regarding propriety may vary, we feel a more definite line must be drawn between permissible inference and mere conjecture. In the case at bar, the husband was shown to have been alone with another woman on a few occasions in her office and once or twice at her home. There was no evidence showing that they were found together very late at night, in a state of undress or under otherwise suspicious circumstances. Nor was there any evidence of feelings of "love" or of affectionate behavior between the two. All we apparently have are...