Woodruff v. Woodruff

• Decision Date: 31 May 1939
• Docket Number: 681.
• Citation: 3 S.E.2d 5,215 N.C. 685
• Parties: WOODRUFF v. WOODRUFF.
• Court: North Carolina Supreme Court

3 S.E.2d 5

215 N.C. 685

WOODRUFF v. WOODRUFF.

No. 681.

Supreme Court of North Carolina

May 31, 1939

Motion in the cause made by defendant to set aside a decree of divorce entered at the November, 1937, Term of Superior Court of Guilford County, for that the plaintiff was guilty of a fraud and imposition upon the court in alleging that there had been a separation for two years by mutual consent, and in offering evidence in support thereof and in making statutory affidavit to the complaint, when he well knew at the time that during the first of the alleged two years of separation the defendant was insane and was represented by guardian, and that the purported judgment was procured by perjured testimony.

Plaintiff instituted his action for divorce August 23, 1937. In his complaint he alleges that the plaintiff and defendant became separated by mutual agreement on or about August 1, 1935, and have continued to live separate and apart since that date. Summons was served by publication, the defendant being at the time in Washington, D. C. At the November Term, 1937 appropriate issues were submitted to and answered by a jury in favor of the plaintiff. A judgment decreeing an absolute divorce and dissolving the bonds of matrimony between the plaintiff and defendant was thereupon entered.

On January 13, 1939, defendant filed her petition and motion in the cause, in which it is alleged that the defendant was insane from October 26, 1931, to February 21, 1936; that she was confined in an institution; and that a guardian who lived in the city of the residence of the plaintiff had been appointed, all to the knowledge of the plaintiff.

The plaintiff in his answer to the petition asserts under oath that "he has provided and paid $25.00 per month for her (defendant's) support and maintenance, in addition to that contributed by the government, since the separation on 1 August, 1935, to and including November, 1937." He alleges further, however, that the defendant was restored to sanity on or about August 1, 1935, the time he alleges the separation took place.

The defendant filed an affidavit in which it is stated that she did not obtain any knowledge of the entry of the decree of divorce until about September 15, 1938, and that, considering her physical condition, she acted with reasonable promptness thereafter. The defendant also offered documentary evidence tending to show that she was adjudged mentally incompetent October 9, 1931; that she was adjudged mentally competent January 3, 1936; and that she was duly adjudged to be competent and her guardian was discharged by order of the Superior Court of Guilford County dated February 21 1936.

When the cause came on to be heard the court below found certain facts, including the following: "3. That there is no evidence that plaintiff has practiced any fraud either upon this court or the defendant." It was thereupon adjudged that the divorce proceeding was in all respects regular, that the decree of divorce is binding upon the parties thereto, and that the motion of the defendant be overruled and her petition dismissed. The defendant excepted and appealed.

O. W. Duke, of Greensboro, for appellant.

R. Parker Waynick, of High Point, and Frazier & Frazier, of Greensboro, for appellee.

BARNHILL Justice.

As the defendant alleges intrinsic fraud motion in the cause is her proper remedy. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1, and cases there cited.

Plaintiff's original action was instituted under the provisions of C.S. § 1659(4), as amended. Except where the separation is in consequence of a criminal act committed by the defendant prior to such divorce proceedings, "a separation of husband and wife" as used in the statute means more than merely living apart. Business and other necessities sometimes require the husband to live at one place and the wife at another. This does not mean necessarily that there has been a separation within the meaning of the statute. The statute, express in terms and plain of meaning, is broad enough to include, and clearly does include, any kind of separation by which the marital association is severed, and which may be made the subject of further judicial investigation. It means the living asunder of a man and wife. It is a voluntary act, except in case of imprisonment for crime, and the separation must be with intent on the part of at least one of the parties to discontinue all of the marital privileges and responsibilities, or it must be due to the wrongful act of at least one of the parties, or by judicial decree. Cooke v. Cooke, 164 N.C. 272, 80...