Williams v. Williams
| Decision Date | 01 March 1944 |
| Docket Number | 25. |
| Parties | WILLIAMS v. WILLIAMS. |
| Court | North Carolina Supreme Court |
Civil action for divorce on grounds of two years separation.
Plaintiff and defendant were married in 1924. They have four children the last of which was born 20 June, 1941. In 1938 they were in New York, and plaintiff had defendant confined in an institution for the feeble-minded. She was first sent to the Jewish Hospital, then to Kings County Observation Ward, and from there to an institution in Brooklyn. Plaintiff could not get her out, and so he borrowed money and had her transferred to a private institution. She was released from this institution in November, 1938. In 1940 he had her confined in the U. S. Public Health Service Institution at Norfolk, and on 6 July, 1939, she was committed to the Eastern State Hospital at Williamsburg 'as insane.' She obtained a furlough on 22 December 1940, and received a discharge 'as restored' 29 January, 1942.
Plaintiff relies upon a separation by mutual agreement entered into orally 9 January, 1941. He testified that on that date they had a conversation in which she said she did not want to live with him any longer and wanted a divorce; that when she insisted he told her He further testified that he then separated himself from the defnedant with the intent to discontinue all marital relations and has since lived separate and apart from her.
Defendant denied the agreement and offered evidence tending to show that he thereafter contributed to her support, and that they visited and cohabited for some time after the alleged agreement.
The usual issues of residence, marriage, and separation were submitted to and answered by the jury in favor of the plaintiff. From judgment on the verdict defendant appealed.
Chester R. Morris, of Currituck, and R. Clarence Dozier, of Elizabeth City, for plaintiff, appellee.
M B. Simpson, of Elizabeth City, for defendant appellant.
The Court below failed to instruct the jury as to the law applicable to the evidence offered by the defendant tending to show that at the time of the alleged agreement she was mentally incapable of consenting to or acquiescing in a separation. This is the basis of defendant's primary exception.
The meaning of the terms 'separation' and 'separate and apart' has been fully and sufficiently discussed in a number of recent decisions of this Court. Lee v. Lee, 182 N.C. 61, 108 S.E. 352; Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5; Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Parker v. Parker, 210 N.C. 264, 186 S.E. 346. Repetition here would be supererogatory.
To establish his cause of action, based on separation by mutual consent, plaintiff must not only show that he and the defendant have lived apart for the statutory period, but also that the separation was voluntary in its inception.
There can be no voluntary separation without the conscious act of both of the parties. There must be an agreement, express or implied. It must appear that they lived apart in a state of separation because of their mutual purpose to do so or because one so determined and the other assented or acquiesced.
But there can be no agreement, assent, or acquiescence on the part of a spouse who is mentally incapable of as senting. Lee v. Lee, supra; Woodruff v. Woodruff, supra; Camire v. Camire, 43 R.I. 489, 113 A. 748; Pile v. Pile, 94 Ky. 308, 309, 22 S.W. 215; Messick v. Messick, 177 Ky. 337, 197 S.W. 792, L.R.A.1918A, 1184; Galiano v. Monteleone, 178 La. 567, 152 So. 126; 17 Am.Jur. 233; Annotations, 51 A.L.R. 769, and 111 A.L.R. 872.
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