Welch v. Welch
| Decision Date | 25 September 1946 |
| Docket Number | 21 |
| Citation | 39 S.E.2d 457,226 N.C. 541 |
| Parties | WELCH v. WELCH. |
| Court | North Carolina Supreme Court |
This was an action for divorce on the ground of separation for two years.
At the conclusion of plaintiff's evidence, defendant moved for judgment of nonsuit on the ground that the plaintiff had failed to show that he had resided in North Carolina for six months before instituting his action. The motion was allowed and from judgment dismissing the action plaintiff appealed.
P H. Bell, of Plymouth, for plaintiff appellant.
Robt. B. Lowry and Geo. J. Spence, both of Elizabeth City, for defendant appellee.
The ruling of the court below in dismissing the plaintiff's action was based upon the view that plaintiff had failed to offer sufficient evidence that he had resided in the state for the statutory period prescribed by G.S. s 50-5(4) and G.S., s 50-6 before instituting his action for divorce.
Both the fact of marriage and that there had been a separation of husband and wife and cessation of marital relations since 1937 were admitted in the pleadings and shown by plaintiff's uncontradicted testimony. Upon the question of residence plaintiff testified that he was born in Chowan County, had lived in Tyrrell and Perquimans where he had paid his taxes, and was now employed in Plymouth, North Carolina that in 1938 he went to work in Norfolk, Virginia, but returned once or twice each month; that he did not intend to make Virginia his home, but it was his intention to remain a citizen of North Carolina.
He further testified that in 1942 the defendant, a resident of Pasquotank County, caused his arrest and conviction for failing to support his infant children, and he was required to make weekly payments for this purpose, which he has done. He also testified that in 1942 he instituted action for divorce in Pasquotank County, but on account of the failure of his counsel to advise him when the case was set for trial, his action was dismissed; that thereafter, acting upon the advice of an attorney in Norfolk that if he slept in Virginia during the week while working there he would be considered a resident of that state, he brought suit for divorce in a Norfolk court, alleging in his complaint that he was a resident of Virginia. No divorce, however, was granted, and the case was subsequently dismissed.
This evidence if accepted would seem to be sufficient to be submitted to the jury on the essential issue of residence. Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7. Having been continuously a resident of North Carolina up to the time he went to Norfolk to engage temporarily in work there, in order to constitute the plaintiff a non-resident of this state his stay in Virginia must have been coupled with the intention to make that his home or to live there permanentlu or indefinitely, which he here disavows. Roanoke Rapids v. Patterson, 184 N.C. 135, 113 S.E. 603; Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549; State v. Williams, 224 N.C. 183, 29 S.E.2d 744; Black's Law Dictionary.
The fact that under mistaken advice he instituted an action for divorce in Virginia upon allegations of...
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Bryant v. Bryant
... ... cards stated his residence as Conway, South Carolina, was ... some evidence on the question of domicile but not necessarily ... conclusive. Welch v. Welch, 226 N.C. 541, 39 S.E.2d ... While ... there was evidence from which a contrary decision might have ... been rendered, ... ...