Lockhart v. . Lockhart

27 S.E.2d 444, 223 N.C. 559, 1943 N.C. LEXIS 322

Opinion

Stacy, O. J.

Tbe question for decision is whether a judicial separation froto bed and board for two years affords ground for divorce under cb. 100, Public Laws 1937. Tbe law answers in tbe affirmative. Compare Si tterson v. Sitterson, 191 N. C., 319, 131 S. E., 641; Lee v. Lee, 182 N. C., 61, 108 S. E., 352.

Tbe plaintiff brought an action in 1939 for divorce on tbe ground of two years’ separation. Tbe defendant answered, admitted tbe separation since 1936, and set up a cross action for a divorce a mensa et thoro and alimony, alleging that tbe plaintiff bad wrongfully abandoned tbe defendant and their minor child. C. S., 1660 and 1665; Pharr v. Pharr, ante, 115. In this proceeding, tbe jury answered tbe issues in favor of tbe defendant, and by consent, alimony and counsel fees were fixed in tbe judgment, which was entered at the February Term, 1940, Wake Superior Court.

The effect of this judgment was to legalize tbe separation of the parties which theretofore bad been an abandonment on the part of the plaintiff. He could not thereafter be charged with desertion. Weld v. Weld, 27 Minn., 330, 7 N. W., 267. It did not, however, sever the marriage tie. Cooke v. Cooke, 164 N. C., 272, 80 S. E., 178.

The present action is for two years’ separation since the 1940 judgment. A legal separation for the requisite period of two years is ground for divorce under ch. 100, Public Laws 1937, which will appear in the General Statutes of 1943 as G. S. 50-6. Byers v. Byers, ante, 85; Lockhart v. Lockhart, ibid., 123. The language of the statute is, that marriages may be dissolved and divorces granted “on application of either party, if and when the husband and wife have lived separate and apart for two years.” Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549; Archbell v. Archbell, 158 N. C., 408, 74 S. E., 327. Tbe separation here contemplated, unrestricted as it is, includes a “judicial separation” as well as one brought about by act of the parties, or one of them. Cooke v. Cooke, supra.

Perhaps it should be noted that in the prior proceeding between the parties hereto the defendant filed a cross action for divorce a mensa under C. S., 1660, a permissible practice with us, Cook v. Cook, 159 N. C., 46, 74 S. E., 639, whereas in Byers v. Byers, supra, the defendant there' proceeded in an independent action for alimony without divorce under C. S., 1667. The purpose and effect of the two proceedings are not the same. Shore v. Shore, 220 N. C., 802, 18 S. E. (2d), 353.

There was error in directing a verdict for the defendant.

New trial.