Pearce v. . Pearce

35 S.E.2d 636, 225 N.C. 571, 1945 N.C. LEXIS 364

Opinion

Barnhill, J.

It would seem to be apparent tbat a wife may not assert a separation agreement providing for ber support as a defense to an action by tbe husband for divorce or have tbe agreement incorporated in tbe decree as a limitation upon tbe relief granted. G. S., 50-11. This we need not now decide, for tbe asserted agreement is void and unenforceable. G. S., 52-12-13; Smith v. Smith, ante, 189; Daughtry v. Daughtry, ante, 358, and cases cited.

A wife who seeks to assert a cause of action under G. S., 50-7 (4), must allege with particularity tbe language and conduct relied upon as constituting such indignities to ber person as to render ber condition intolerable and ber life burdensome. Howell v. Howell, 223 N. C., 62, 25 S. E. (2d), 169; Pollard v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1.

Whether tbe language and conduct of plaintiff as alleged constitute “indignities to tbe person” of bis wife might be tbe subject of debate, but conceding arguendo tbat such behavior is within tbe contemplation of tbe statute, there is still a material defect in defendant’s attempted allegation of a cross action. At no time does sbe allege tbat plaintiff’s conduct was without adequate provocation on ber part. This averment is essential. Its omission is fatal. Howell v. Howell, supra; Pollard v. Pollard, supra; Carnes v. Carnes, 204 N. C., 636, 169 S. E., 222; McManus v. McManus, 191 N. C., 740, 133 S. E., 9; Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 917; Martin v. Martin, 130 N. C., 27; O'Connor v. O'Connor, 109 N. C., 139; Jackson v. Jackson, 105 N. C., 433; White v. White, 84 N. C., 340.

Plaintiff’s cause of action is cóucbed in tbe language of G. S., 50-5 (4). He must prove his case secundum, allegata by showing that the separation was voluntary in its inception. Taylor v. Taylor, ante, 80; Williams v. Williams, 224 N. C., 91. If the assent of the wife was obtained by fraud or deceit, the separation was not voluntary within the meaning of the law.

But here again the allegations are insufficient to constitute a valid defense. Defendant does allege that plaintiff ordered her to leave his home, but she did not go. Instead she bargained with him for a contract of separation. There is no averment that her agreement was induced by fraud, deceit, or undue influence. Her husband merely “persuaded” her to execute the contract.

The court below erred in overruling the demurrer to the second further defense and cross action.

On plaintiff’s appeal, reversed.

On defendant’s appeal, affirmed.