Dudley v. . Dudley

Supreme Court of North Carolina

Dudley v. . Dudley

33 S.E.2d 489, 225 N.C. 83, 1945 N.C. LEXIS 265

CourtSupreme Court of North Carolina

DecidedMarch 28, 1945

StatusPublished

Cited by28 cases

This text of 33 S.E.2d 489 (Dudley v. . Dudley) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dudley v. . Dudley, 33 S.E.2d 489, 225 N.C. 83, 1945 N.C. LEXIS 265 (N.C. 1945).

Pincite

Opinion

Denny, J.

The statute relied upon by the plaintiff for the relief sought, provides that: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of six months.” G. S., 50-6. Therefore, the question presented is whether or not the plaintiff and the defendant lived separate and apart for two years next preceding the institution of this action.

The plaintiff testified he had lived separate and apart from his wife for a period of five years, although they had lived in the same house, and occupied the same or adjoining rooms during the entire period. The appellant takes the position that the discontinuance of sexual relations between him and his wife for a period of more than two years next preceding the institution of this action, was a living “separate and apart,” within the meaning of our statute. We do not so hold.

There is no evidence on this record showing a cessation of cohabitation between the plaintiff and defendant in the usually accepted sense, except as to their sexual relations. As stated in Parker v. Parker, 210 N. C., 264, 186 S. E., 346: “The word ‘separation,’ as applied to the legal status of a husband and wife, . . . means ‘A cessation of cohabitation of husband and wife.’ ” Cohabit, according to Winston’s Dictionary, Encyclopedia Edition (1943), means : “To live together as man and wife; usually, though not necessarily, implying sexual intercourse.” Black’s Law Dictionary, Third Edition, defines the meaning of cohabitation, as: “Living together, living together as man and wife; sexual *86 intercourse.” Cohabitation includes other marital duties besides marital intercourse.

The overwhelming weight of authority as to what is meant by living “separate and apart,” is in accord with the view expressed in 17 Am. Jur., sec. 162, p. 232, as follows: “The discontinuance of sexual relations is not in itself a living 'separate and apart’ within the meaning of some statutes, and a divorce will be denied where it appears that during the period relied upon the parties had lived in the same house. It has been said that what the law makes a ground for divorce is the living separately and apart of the husband and wife continuously for a certain number of years. This separation implies something more than a discontinuance of sexual relations, whether the discontinuance is occasioned by the refusal of the wife to continue them or not. It implies the living apart for such period in such a manner that those in the neighborhood may see that the husband and wife are not living together.” 27 C. J. S., sec. 36, p. 570; 19 C. J., sec. 111 (b), p. 59; Singleton v. Rogers, 160 La., 196, 106 So., 781; Quinn v. Brown, 159 La., 570, 105 So., 624; Arnoult v. Letten, 155 La., 275, 99 So., 218; Gates v. Gates, 192 Ky., 253, 232 S. W., 378, 51 A. L. R., Anno., 768; Burton v. Burton, 184 Ky., 45, 220 S. W., 1065; McCurry v. McCurry, 126 Conn., 175, 10 A. (2d), 365; Black v. Black, 48 Nev., 220, 228 P., 889; Smith v. Smith, 116 W. Va., 271, 180 S. E., 185; Albert v. Albert, 137 Va., 1, 119 S. E., 61; McNary v. McNary, 8 Wash. (2d), 250, 111 P. (2d), 760.

Marriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the ground of separation, when the only evidence of such separation must, in the language of the Supreme Court of Louisiana (in the case of Hava v. Chavigny, 147 La., 331, 84 So., 892), “be sought behind the closed doors of the matrimonial domicile.” Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation. See Taylor v. Taylor, ante, 80.

The judgment of the court below is

Affirmed.

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Denny, J.

The statute relied upon by the plaintiff for the relief sought, provides that: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of six months.” G. S., 50-6. Therefore, the question presented is whether or not the plaintiff and the defendant lived separate and apart for two years next preceding the institution of this action.

The plaintiff testified he had lived separate and apart from his wife for a period of five years, although they had lived in the same house, and occupied the same or adjoining rooms during the entire period. The appellant takes the position that the discontinuance of sexual relations between him and his wife for a period of more than two years next preceding the institution of this action, was a living “separate and apart,” within the meaning of our statute. We do not so hold.

There is no evidence on this record showing a cessation of cohabitation between the plaintiff and defendant in the usually accepted sense, except as to their sexual relations. As stated in Parker v. Parker, 210 N. C., 264, 186 S. E., 346: “The word ‘separation,’ as applied to the legal status of a husband and wife, . . . means ‘A cessation of cohabitation of husband and wife.’ ” Cohabit, according to Winston’s Dictionary, Encyclopedia Edition (1943), means : “To live together as man and wife; usually, though not necessarily, implying sexual intercourse.” Black’s Law Dictionary, Third Edition, defines the meaning of cohabitation, as: “Living together, living together as man and wife; sexual *86 intercourse.” Cohabitation includes other marital duties besides marital intercourse.

The overwhelming weight of authority as to what is meant by living “separate and apart,” is in accord with the view expressed in 17 Am. Jur., sec. 162, p. 232, as follows: “The discontinuance of sexual relations is not in itself a living 'separate and apart’ within the meaning of some statutes, and a divorce will be denied where it appears that during the period relied upon the parties had lived in the same house. It has been said that what the law makes a ground for divorce is the living separately and apart of the husband and wife continuously for a certain number of years. This separation implies something more than a discontinuance of sexual relations, whether the discontinuance is occasioned by the refusal of the wife to continue them or not. It implies the living apart for such period in such a manner that those in the neighborhood may see that the husband and wife are not living together.” 27 C. J. S., sec. 36, p. 570; 19 C. J., sec. 111 (b), p. 59; Singleton v. Rogers, 160 La., 196, 106 So., 781; Quinn v. Brown, 159 La., 570, 105 So., 624; Arnoult v. Letten, 155 La., 275, 99 So., 218; Gates v. Gates, 192 Ky., 253, 232 S. W., 378, 51 A. L. R., Anno., 768; Burton v. Burton, 184 Ky., 45, 220 S. W., 1065; McCurry v. McCurry, 126 Conn., 175, 10 A. (2d), 365; Black v. Black, 48 Nev., 220, 228 P., 889; Smith v. Smith, 116 W. Va., 271, 180 S. E., 185; Albert v. Albert, 137 Va., 1, 119 S. E., 61; McNary v. McNary, 8 Wash. (2d), 250, 111 P. (2d), 760.

Marriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the ground of separation, when the only evidence of such separation must, in the language of the Supreme Court of Louisiana (in the case of Hava v. Chavigny, 147 La., 331, 84 So., 892), “be sought behind the closed doors of the matrimonial domicile.” Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation. See Taylor v. Taylor, ante, 80.

The judgment of the court below is

Affirmed.

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33 S.E.2d 489, 225 N.C. 83, 1945 N.C. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dudley-v-dudley-nc-1945.

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