Hill v. Hill

186 S.E.2d 665, 13 N.C. App. 641, 1972 N.C. App. LEXIS 2300

• Court: Court of Appeals of North Carolina
• Decided: February 23, 1972
• Docket: 7225DC37
• Status: Published

Opinion

BRITT, Judge.

Plaintiff assigns as error certain findings of fact and conclusions of law made by the trial judge. The case on appeal does not contain a complete record of the testimony presented at the hearing and does not contain the text of the separation agreement referred to in the pleadings and the order appealed from.

It is the duty of an appellant to see that the record is properly made up and transmitted. State v. Childs, 269 N.C. 307, 152 S.E. 2d 453 (1966). In the case at hand, without a more complete record of the evidence presented at the hearing, including in particular the separation agreement, we are unable to pass upon the questions raised by plaintiff-appellant. One of the conclusions of law that plaintiff assigns as error is as fol lows: “That adultery will not give rise to a cause of action under North Carolina General Statute Section 50-16.1 through 10, where said acts of adultery occur at a time when the accused party is living under a valid, and properly executed Separation Agreement.” We can conceive of cases in which this conclusion would be erroneous but from the record before us we are unable to say whether or not it was erroneous in this case.

The order appealed from is interlocutory. Plaintiff is entitled to a trial of her cause on the merits at which time she will have another opportunity to have a proper record of the case made and proper foundation laid for all questions she desires to raise.

For lack of a proper record on appeal, the order appealed from is

Affirmed.

Judges Brock and Vaughn concur.