Pharr v. . Pharr

25 S.E.2d 471, 223 N.C. 115, 1943 N.C. LEXIS 214

• Court: Supreme Court of North Carolina
• Decided: April 28, 1943
• Status: Published

Opinion

DeNNY, J.

Plaintiff demurred ore tenus in this Court, to the further answer and defense and to the cross action.

The defendant in her amended further answer and defense pleads in bar of plaintiff’s right to a divorce, his unlawful and wrongful abandonment and nonsupport of the defendant, and recrimination.

Under the decisions of this Court either plea in bar, if sustained, is sufficient to prevent the plaintiff from obtaining a divorce. In the case of Byers v. Byers, ante, 85, Stacy, C. J., reviews our decisions and statutes, dealing with separation as a ground for divorce, and says: “It is true, the statute under review provides that either party may sue for a divorce or for a dissolution of the bonds of matrimony, If and when the husband and wife have lived separate and apart for two years,’ etc. However, it is not to be supposed the General Assembly intended to authorize one spouse willfully or wrongfully to abandon the other for a period of two years and then reward the faithless spouse a divorce for the wrong committed, in the face of a plea in bar based on such wrong.” The foregoing is in accord with the decision of this Court in the cases of Reynolds v. Reynolds, 208 N. C., 428, 181 S. E., 338; Brown v. Brown, 213 N. C., 347, 196 S. E., 333; and Hyder v. Hyder, 215 N. C., 239, 1 S. E. (2d), 540.

The doctrine of recrimination is recognized in this jurisdiction. Horne v. Horne, 72 N. C., 533; House v. House, 131 N. C., 141, 42 S. E., 546. In the latter case, this Court said: “The general principle which governs in a case where one party recriminates is that the recrimination must allege a cause which the law declares sufficient for a divorce.” This view is supported by the authorities generally. See 27 C. J. S., p. 623, sec. 67; and 17 Am. Jur., 268, where it is stated: “It is well settled in this country under the doctrine of recrimination that the defendant to an action for divorce may set up as a defense in bar that the plaintiff was guilty of misconduct which in itself would be a ground for divorce.”

We said in Byers v. Byers, supra (filed this day), that the party in the wrong in the face of a plea in bar based on such wrong cannot obtain a divorce under the provisions of chapter 100, Public Laws 1937, N. C. Code of 1939, sec. 1659 (a), (Michie).

We likewise hold that our divorce statutes do not authorize the granting of a divorce to one spouse where the other pleads and establishes recrimination.

The exceptions entered by the plaintiff to the refusal of his Honor to strike portions of the original answer are without merit and the discretionary ruling on defendant’s motion to amend her pleading is not reviewable on appeal. C. S., 547. It will be noted that the motion to strike was limited to the original answer and not directed to the amended further answer and cross action. In this connection attention is called to Silver v. Silver, 220 N. C., 191, 16 S. E. (2d), 834, and Shore v. Shore, 220 N. C., 802, 18 S. E. (2d), 353. ¥e find no error in the rulings of the court below.

The demurrer ore tenus interposed in this Court cannot be sustained. In Griffin v. Baker, 192 N. C., 297, 134 S. E., 651, the law is stated as follows: “The rule is well established that where a general demurrer is filed to a petition as a whole, if any count of the pleading is good and states a cause of action, a demurrer should be overruled, and the same rule governs as to demurrers to defenses. 21 E. C. L., sec. 77.” The demurrer is overruled, and the judgment of the court below is

Affirmed.