McDowell v. McDowell

Supreme Court of North Carolina

McDowell v. McDowell

90 S.E.2d 544, 243 N.C. 286, 1955 N.C. LEXIS 591

CourtSupreme Court of North Carolina

DecidedDecember 14, 1955

Docket527

StatusPublished

Cited by7 cases

This text of 90 S.E.2d 544 (McDowell v. McDowell) 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

McDowell v. McDowell, 90 S.E.2d 544, 243 N.C. 286, 1955 N.C. LEXIS 591 (N.C. 1955).

Pincite

Opinion

PER Cuexam.

The complaint is verified according to the requirements of G.S. 50-16. Cunningham v. Cunningham, 234 N.C. 1, 65 S.E. 2d 375.

“If any husband ... be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board,” the wife may institute an action for alimony without divorce. G.S. 50-16; Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909. “If either party abandons his or her family” it is a ground for divorce from bed and board. G.S. 50-7, sub-sec. 1; Cameron v. Cameron, 235 N.C. 82, 68 S.E. 2d 796.

The complaint alleges the existence of a valid marriage between the parties, a compelling of the wife to leave the husband by reason of his wilful failure and refusal to provide her with any support, except $1,147.50 for the past 34 months, that from this sum she has expended $1,001.00 for medical expenses, that she has incurred other medical expenses, which he refuses to pay, that she has been a faithful and dutiful wife, is in extremely poor health, requires money for further hospital and medical expense, and that his wilful failure to provide for her adequate support has been without provocation on her part. These allegations are sufficient to state a cause of action for alimony without divorce upon the ground of abandonment, and the demurrer was properly overruled. G.S. 50-16; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E. 2d 919; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917; High v. Bailey, 107 N.C. 70, 12 S.E. 45.

The complaint attempts to allege as another ground for divorce from bed and board that the defendant offered such indignities to the person of his wife as to render her condition intolerable and life burdensome. *288 Such allegations are fatally defective for failure to allege sufficient specific acts and conduct to meet the requirements of our decisions. Ollis v. Ollis, 241 N.C. 709, 86 S.E. 2d 420; Best v. Best, 228 N.C. 9, 44 S.E. 2d 214; Howell v. Howell, 223 N.C. 62, 25 S.E. 2d 169.

The plaintiff was permitted by the court below to file an amendment to her complaint, but she failed to do so.

The other assignments of error have been examined, and are without merit. The order by the court below is

Affirmed.

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PER Cuexam.

The complaint is verified according to the requirements of G.S. 50-16. Cunningham v. Cunningham, 234 N.C. 1, 65 S.E. 2d 375.

“If any husband ... be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board,” the wife may institute an action for alimony without divorce. G.S. 50-16; Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909. “If either party abandons his or her family” it is a ground for divorce from bed and board. G.S. 50-7, sub-sec. 1; Cameron v. Cameron, 235 N.C. 82, 68 S.E. 2d 796.

The complaint alleges the existence of a valid marriage between the parties, a compelling of the wife to leave the husband by reason of his wilful failure and refusal to provide her with any support, except $1,147.50 for the past 34 months, that from this sum she has expended $1,001.00 for medical expenses, that she has incurred other medical expenses, which he refuses to pay, that she has been a faithful and dutiful wife, is in extremely poor health, requires money for further hospital and medical expense, and that his wilful failure to provide for her adequate support has been without provocation on her part. These allegations are sufficient to state a cause of action for alimony without divorce upon the ground of abandonment, and the demurrer was properly overruled. G.S. 50-16; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E. 2d 919; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917; High v. Bailey, 107 N.C. 70, 12 S.E. 45.

The complaint attempts to allege as another ground for divorce from bed and board that the defendant offered such indignities to the person of his wife as to render her condition intolerable and life burdensome. *288 Such allegations are fatally defective for failure to allege sufficient specific acts and conduct to meet the requirements of our decisions. Ollis v. Ollis, 241 N.C. 709, 86 S.E. 2d 420; Best v. Best, 228 N.C. 9, 44 S.E. 2d 214; Howell v. Howell, 223 N.C. 62, 25 S.E. 2d 169.

The plaintiff was permitted by the court below to file an amendment to her complaint, but she failed to do so.

The other assignments of error have been examined, and are without merit. The order by the court below is

Affirmed.

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Bluebook (online)

90 S.E.2d 544, 243 N.C. 286, 1955 N.C. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdowell-v-mcdowell-nc-1955.

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