Pruett v. Pruett

100 S.E.2d 296, 247 N.C. 13, 1957 N.C. LEXIS 550

• Court: Supreme Court of North Carolina
• Decided: October 30, 1957
• Docket: 244
• Status: Published

Opinion

Bobbitt, J.

Plaintiff’s exceptive assignment of error, “That the Court erred ... in finding the facts ... as contained in Judgment,” is broadside. In re Sams, 236 N.C. 228, 72 S.E. 2d 421. Moreover, plaintiff, in his brief, makes no contention that the evidence was insufficient to support the findings of fact or any of them. Hence, we accept as established the facts as set forth in the court’s findings. In re Estate of Cogdill, 246 N.C. 602, 99 S.E. 2d 785.

The sole question for decision is whether the findings of fact and the facts appearing on the face of the record proper are sufficient in law to support the judgment.

The record of the trial on 11 June, 1957, before Judge Moore, shows that the jury answered issues establishing the marriage and the required residence and in addition thereto answered this crucial issue: “2. Did the plaintiff, wilfully and without just cause, abandon the defendant and fail to provide adequate support for her, as alleged in the Further Answer and Defense of the defendant? Answer: Yes.” (Italics added.) The judgment, granting to defendant a divorce from bed and board, recites that the cause was heard “upon the cross action of the defendant,” to wit, the issues raised by defendant’s answer and plaintiff’s reply thereto.

The grounds on which plaintiff based his motion to set aside Judge Moore’s judgment of 11 June, 1957, are these: (1) That defendant, in her cross action, failed to allege that the facts set forth therein as grounds for a divorce from bed and board had existed to her knowledge for at least six months next preceding the filing of her pleading, and that no issue relating to this essential allegation was submitted to the jury. (2) That defendant, in her cross action, purported only to set up a cause of action for divorce from bed and board under G.S. 50-7(3), to wit, that by cruel and barbarous treatment he had endangered her life, and that her allegations were insufficient to state a cause of action on this ground. (3) That defendant, in her cross action, failed to allege that plantiff abandoned her or that his conduct was wilful; that she failed to allege any specific time when she called on him for support or when he failed to provide adequate support; and that she failed “to specifically set forth the circumstances under which the purported violence was committed, what her conduct was, and especially what she had done to provoke such conduct on the part of her husband.”

The verdict (second issue) established that plaintiff, wilfully and without just cause, abandoned defendant and failed to provide adequate support for her “as alleged" in the Further Answer and Defense of the defendant.”

Before examining the allegations of the cross action to determine what facts were alleged therein by defendant and established by the verdict, attention is called to the fact that the General Assembly, by Ch. 590, 1951 Session Laws, rewrote G.S. 50-8. Prior to the 1951 Act, the court acquired no jurisdiction of an action for divorce, absolute or from bed and board, unless the plaintiff filed with the complaint an affidavit containing required statutory averments. Since such affidavit was a prerequisite to jurisdiction, the jurisdiction of the court was subject to challenge either before or after judgment on the ground that the required statutory averments, although set forth sufficiently, were in fact false. Upon such challenge, questions of fact to be resolved by the court were presented. Thus, the distinction was drawn between the material facts constituting the cause of action to be alleged in the complaint, which were for jury determination, and the jurisdictional facts required to be set forth in the affidavit, which were for court determination. Carpenter v. Carpenter, 244 N.C. 286, 93 S.E. 2d 617, and cases cited.

The 1951 Act eliminated the requirement that such jurisdictional affidavit be filed with the complaint. The only requirement now is that “in all actions for divorce the complaint shall be verified in accordance with the provisions of G.S. 1-145 and G.S. 1-148.” But the 1951 Act, now incorporated in G.S. 50-8, to the extent pertinent here, specifically requires that the plaintiff shall set forth in his or her complaint that the plaintiff or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint, and that the facts set forth therein as grounds for divorce (except where the alleged cause for divorce is two years separation) have existed to his or her knowledge for at least six months prior to the filing of the complaint. Hence, to allege a cause of action for divorce, a plaintiff, in addition to one or more of the grounds for divorce specified in G.S. 50-5 or G.S. 50-7, must allege the additional material facts now required by G.S. 50-8.

G.S. 50-10, in pertinent part, provides: “The material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not,' and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a jury, . . . .” Consequently, upon the basic principle that a plaintiff must prove what he must allege, a plaintiff is entitled to a judgment of divorce only if the issues submitted and answered in favor of the plaintiff establish, inter alia, (1) the requisite facts as to residence, and (2) that (ex cept where the alleged cause for divorce is two years separation) the facts set forth as grounds for divorce have existed to his or her knowledge for at least six months prior to the filing of the complaint. “The pleadings in the action present the issue which should be submitted to a jury.” Kinney v. Kinney, 149 N.C. 321, 63 S.E. 97; Carpenter v. Carpenter, supra. Thus, the legal effect of the 1951 Act is that the allegations required to be set forth in the complaint are now indispensable constituent elements of plaintiff’s cause of action and the facts so alleged must be established by the verdict of a jury.

Here defendant’s pleading was verified in accordance with the present statutory requirement. The court had jurisdiction of the parties and of the subject matter.

Plaintiff’s counsel, present at the trial on 11 June, 1957, did not object to the issues submitted by Judge Moore, nor did plaintiff appeal from the judgment based upon the verdict. If, as plaintiff now contends, defendant’s pleading did not warrant the second issue, the submission thereof and hence the judgment based thereon were erroneous. In such case, upon expiration of the term at which the judgment was rendered, it could be corrected only by this Court; for, as stated by Professor McIntosh, “after the term neither the judge who rendered the judgment nor another judge holding the court can set it aside for such error, and the only remedy is an appeal or a certiorari as a substitute for an appeal.” McIntosh, N.C.P.&P., p. 736; Mills v. Richardson, 240 N.C. 187, 191, 81 S.E. 2d 409. Judge Moore’s judgment could not be set aside for such alleged error of law by another Superior Court judge at a subsequent term, nor will it be reviewed by this Court for such alleged error of law in the absence of exception and appeal. Burrell v. Transfer Co., 244 N.C. 662, 665, 94 S.E. 2d 829.

True, a decree of divorce will be declared void if the court was without power or jurisdiction to render it became of the insufficiency of the facts found by the jury, when this appears on the face of the record. Such decree may be attacked directly by motion in the cause, Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7, or collaterally, Saunderson v. Saunderson, 195 N.C. 169, 141 S.E. 572. In such case, as explained by Stacy, C. J., in Ellis v. Ellis, supra, “the vacation of the judgment does not mean that the verdict already rendered should be set aside,” but only that the court lacked the power to grant the relief contained in the judgment on the basis of the facts established by the verdict. In such case, with the judgment vacated but the verdict undisturbed, the cause is for further-hearing as'to “essential issuable facts not theretofore determined.

To invoke this principle, it must appear, as in £he Ellis and Saunderson cases, that the verdict did not establish all the facts prerequisite to a judgment of divorce. In this connection, it is noted that no exact formula is prescribed for the settlement of issues. “Issues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly.” Winborne, J. (now C.J.), in Cherry v. Andrews, 231 N.C. 261, 56 S.E. 2d 703; McGowan v. Beach, 242 N.C. 73, 86 S.E. 2d 763, and cases cited.

Plaintiff’s allegations as to residence were admitted by defendant. In paragraph 3 of the complaint, plaintiff alleged: “3. That the plaintiff and defendant were married to each other on the 9th day of January, 1936, and lived together as man and wife until the second day of May, 1955, when the defendant deserted the plaintiff without cause, and that they have not cohabited since said date of separation.” Defendant’s answer to said paragraph 3 was as follows: “3. That the allegations contained in paragraph 3 of plaintiff’s complaint are untrue and denied, except as hereinafter set forth in defendant’s further answer, defense and cross action.”

We note presently that defendant’s further answer, defense and. cross action, while admitting that plaintiff and defendant were lawfully married, alleged that they were married on 9 January, 1930, not 9 January, 1936, and that they separated the latter part of May or first of June, 1955, not on 2 May, 1955. Defendant’s allegations as to the cause of said separation are considered below.

In pleading her cross action for divorce from bed and board, defendant alleged, in substance, that she and plaintiff were lawfully married 9 January, 1930, and- that they were residents of North Carolina and had been such residents for more than two years next preceding the commencement of the action. She then alleged that she had worked in a factory for more than twelve years and had turned the wages derived from her labor over to plaintiff, her husband; that she had been at all times during their marriage a kind and dutiful wife; that for many years she had cared for plaintiff’s invalid mother; and that prior to their separation her health had broken down and she had become unable to perform all the duties required of her by plaintiff.

Thereupon, defendant alleged the circumstances under which she and plaintiff separated in the following language: “that sometime during the latter part of May or the first of June, 1955, . . . upon this defendant’s returning to the home of the plaintiff and defendant, . . . this defendant found that she had been locked out and was ordered away from the home by the plaintiff, and that this defendant walked a distance of several miles and sought refuge with some of the neighbors; that later this defendant went to the home of her father and has not com pletely recovered from said illness; that this defendant is at the present time under the care of physicians; that this defendant has called upon plaintiff to buy her medicine, to help her with some clothes, to assist her in some way in paying- for medical attention and that this defendant has been informed by plaintiff, recently, that she would not get a damn thing from him.”

As to what had occurred prior to the latter part of May or the first of June, 1955, the occasion when plaintiff locked her out of her home and ordered her away and caused her to seek refuge in her father’s house, defendant alleged, briefly stated, that defendant had “struck, beat, choked and otherwise mistreated” her; that on numerous occasions he had threatened to kill her; and that, by his cruel and barbarous treatment, he had endangered her life.

True, defendant’s pleading contains no allegation “that the facts set forth therein as grounds for divorce (had) existed to . . . her knowledge for at least six months prior to the filing of the (her) complaint.” The question presented is whether the allegations of fact in her pleading, quoted above, relating to what occurred the latter part of May or the first of June, 1955, to wit, that plaintiff locked her out of her home and ordered her away, this being the examination of gross mistreatment consisting of beatings, chokings and threats on her life, constitute a sufficient compliance with G.S. 50-8. We answer this question in the affirmative. Ordinarily, it would seem advisable that the required allegation be made in accordance with the language of the statute. Yet, when it appears from the allegations that the facts constituting the abandonment occurred the latter part of May or the first of June, 1955, and that defendant was necessarily present in person and directly involved in what then occurred, the conclusion seems inescapable that she, in substance and in effect, alleged that the facts set forth by her as grounds for divorce had existed to her knowledge for at least six months prior to the filing of her pleading. It is noted that in respect of these allegations, defendant’s verification of her pleadings is that “the foregoing Answer” is “true of her own knowledge.”

Moreover, while defendant did not use the word “abandonment” or the word “wilful” in her said pleading, we are constrained to hold that the facts alleged by defendant are sufficient to constitute wilful abandonment as a matter of law. It is noted that “abandonment imports wilfulness.” Workman v. Workman, 242 N.C. 726, 89 S.E. 2d 390.

Even so, plaintiff contends that defendant’s allegations as to his alleged failure to provide adequate support for her are too indefinite to support a similar conclusion in that it does not appear affirmatively from the facts alleged that such failure to provide adequate support for her had existed to her knowledge for at least six months prior to the filing of her pleading. As to this, further analysis of defendant’s pleading is unnecessary for the reason that no allegation as to alleged failure to provide adequate support was required.

G.S. 50-7 provides, as a ground for divorce from bed and board: “1. If either party abandons his or her family.” (Italics added.) It is available to the husband as well as to the wife. Abandonment under G.S. 50-7(1) is not synonymous with the criminal offense defined in G.S. 14-322. “In a prosecution under G.S. 14-322, the State must establish (1) a wilful abandonment, and (2) a wilful failure to provide adequate support.” S. v. Lucas, 242 N.C. 84, 86 S.E. 2d 770.

True, the husband’s wilful failure to provide adequate support for his wife may be evidence of his abandonment of her, but the mere fact that he provides adequate support for her does not in itself negative abandonment as used in G.S. 50-7 (1). “A wife is entitled to her husband’s society and the protection of his name and home in cohabitation. The permanent denial of these rig'hts may be aggravated by leaving her destitute or mitigated by a liberal provision for her support, but if the cohabitation is brought to an end without justification and without the consent of the wife and without the intention of renewing it, the matrimonial offense of desertion is complete.” 17 Am. Jur., Divorce and Separation Sec. 98. As pointed out by Hoke, J. (later C. J.), in Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857: “. . . a suit for divorce because of being maliciously turned out of doors, under subsection 2, section 1562, of Revisal (now G.S. 50-7), is but an instance of a wrongful abandonment provided for in subsection 1 of the statute, and the basic facts in the two suits being the same, . . .”

As to plaintiff’s contention that defendant’s cross action purports to be under G.S. 50-7(3), to wit, that by cruel and barbarous treatment he endangered her life, we need not determine whether defendant’s allegations were sufficient to allege a good cause of action for divorce from bed and board on this ground. No issue was submitted bearing directly on this subject. Suffice to say, we think Judge Moore was correct in interpreting defendant’s pleading as sufficient to allege the wilful abandonment of defendant by plaintiff and in submitting the issue so raised. To obtain a divorce from bed and board, the law required that defendant establish one, but only one, of the grounds therefor specified in G.S. 50-7. Deaton v. Deaton, 234 N.C. 538, 67 S.E. 2d 626; Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909; Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507; Albritton v. Albritton, 210 N.C. 111, 185 S.E. 762.

We have not overlooked Ollis v. Ollis, 241 N.C. 709, 86 S.E. 2d 420, and similar cases, wherein it is held, in substance, that a wife, in alleging a cause of action for divorce from bed and board under G.S. 50-7 (3) and (4), must set out with particularity the wrongful acts of the husband upon which she relies and also that such acts were without adequate provocation on her part. It may be, a question not now before us, that this rule would apply where a separation alleged to constitute an abandonment under G.S. 50-7(1) is alleged to have been caused by conduct defined in G.S. 50-7 (3) and (4). See Brooks v. Brooks, supra. Be that as it may, here defendant’s allegations to the effect that plaintiff locked her out of her home, ordered her away and caused her to seek refuge in her father’s house, considered with her other allegations, are deemed sufficient without further elaboration. The distinction becomes clear when we refer to the factual situation in Ollis v. Ollis, supra. There the wife admittedly left her husband. She did not allege that her husband was even at home when she separated herself from him. In short, it was not alleged that the separation was caused by anything that occurred at the time of the separation. Her allegations, which related to antecedent matters, were made in part to justify her conduct in so separating herself from him.

Before leaving this phase of the case, mention should be made of the fact that plaintiff in his said motion asserted that he had “a good and meritorious defense to the defendant’s action for divorce from bed and board.” Indeed, in his reply, he had so alleged prior to the trial on 11 June, 1957. However, the motion was not made under G.S. 1-220, that is, to set aside the judgment on the ground of mistake, inadvertence, surprise or excusable neglect. Hence, Judge Sharp made no findings of fact as to plaintiff’s asserted meritorious defense nor does it appear that plaintiff requested her to do so.

Having reached the conclusion that plaintiff’s attack on the judgment of 11 June, 1957, cannot be sustained, it follows that the purported second trial before Judge Sharp on 25 June, 1957, conducted by her under a complete misapprehension of the facts, was a nullity; and that Judge Sharp’s judgment of 23 August, 1957, wherein she set aside the verdict and judgment of 25 June, 1957, must be affirmed. This is true because the jury on 11 June, 1957, had fully determined all issues raised by the pleadings, and Judge Moore’s judgment of that date (except for modifications as to the amount of alimony payments required) was a final judgment. Cameron v. Cameron, 235 N.C. 82, 87, 68 S.E. 2d 796.

The verdict of 11 June, 1957, established that the separation occurred the.latter part of May or first of June, 1955. Plaintiff instituted this action 13 May, 1957, alleging a separation on 2 May, 1955, an allegation denied by defendant. Hence, the verdict established that plaintiff and defendant had not lived separate and apart continuously for two years or more next preceding commencement of plaintiff’s action as he had alleged.

Moreover, the verdict of 11 June, 1957, established that the separation was caused by plaintiff’s wilful abandonment of defendant under the circumstances alleged by her. This defeated plaintiff’s action for absolute divorce on the ground of such separation.

In Byers v. Byers, 223 N.C. 85, 90, 25 S.E. 2d 466, where the statutory changes and prior decisions are reviewed, Stacy, C. J., says: “It is true, the statute under review (now G.S. 50-6) 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 wilfully and 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. (Citations omitted.) Nor is it to be ascribed as the legislative intent that one spouse may drive the other from their home for a period of two years, without any cause or excuse, and then obtain a divorce solely upon the ground of such separation created by the complainant’s own dereliction. (Citation omitted.) Out of unilateral wrongs arise rights in favor of the wronged, but not in favor of the wrongdoer. One who plants a domestic thornbush or thistle need not expect to gather grapes or figs from it.” In accord: Pharr v. Pharr, 223 N.C. 115, 25 S.E. 2d 471; Taylor v. Taylor, 225 N.C. 80, 33 S.E. 2d 492; Pearce v. Pearce, 226 N.C. 307, 37 S.E. 2d 904; Johnson v. Johnson, 237 N.C. 383, 75 S.E. 2d 109. See also, Young v. Young, 225 N.C. 340, 343, 34 S.E. 2d 154; Cameron v. Cameron, supra.

When a judgment has been entered, based on a verdict which determines all issues raised by the pleadings, the cause has been fully determined; and the court at a subsequent term has no. jurisdiction to proceed further with reference to issuable facts theretofore fully and finally determined. It is quite plain that Judge Sharp would not have proceeded with the purported trial on 25 June, 1957, had she been advised of the prior determinations made in the trial before Judge Moore on 11 June, 1957.

While it has been determined that the separation that oc-cured the latter part of May or first of June, 1957, was caused by plaintiff’s wilful abandonment of defendant, the effect of the judgment of 11 June, 1957, was to legalize the separation. Hence, it would seem that plaintiff, upon the expiration of two years from 11 June, 1957, would then be at liberty to maintain an action for absolute divorce under G.S. 50-6. Lockhart v. Lockhart, 223 N.C. 123, 25 S.E. 2d 465; and 223 N.C. 559, 27 S.E. 2d 444.

Affirmed.