Howell v. . Howell

25 S.E.2d 169, 223 N.C. 62, 1943 N.C. LEXIS 204

• Court: Supreme Court of North Carolina
• Decided: April 14, 1943
• Status: Published

Opinion

DeNNy, J.

In an action for alimony without divorce, as in an action for divorce a mensa et thoro by the wife, she must not only set out with some particularity the acts of cruelty upon the part of the husband, but she must aver, and consequently offer proof, that such acts were without adequate provocation upon her part. Pollard v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1; Carnes v. Carnes, 204 N. C., 636, 169 S. E., 222; Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 719; Martin v. Martin, 130 N. C., 27, 40 S. E., 822; O’Connor v. O’Connor, 109 N. C., 139, 13 S. E., 887; Jackson v. Jackson, 105 N. C., 433, 11 S. E., 173; White v. White, 84 N. C., 340.

While the complaint does not set forth with particularity the language and conduct of the defendant upon which the plaintiff relies, as constituting such indignities to her person as to render her condition intolerable and her life burdensome, as required by numerous decisions of this Court, she further fails to allege that the acts of cruelty and misconduct on the part of her husband were without adequate provocation on her part. The omission of such allegation is fatal to her cause of action.

The demurrer should have been sustained.

Reversed.