Eudy v. Eudy

BRITT, Judge. The complaint alleges an action for alimony without divorce; it does not allege an action for divorce from bed and board and does not ask for that relief. It appears from certain interlocutory orders entered, particularly Judge Crutchfield’s order dated 25 August 1972, that prior to trial the cause was treated as an action for alimony without divorce. While the court at trial did not submit all the issues required in an action for divorce from bed and board, it charged the jury with respect thereto and in the judgment granted plaintiff a divorce from bed and board. Although defendant has not assigned this as error, we feel that it is error appearing upon the face of the record which we cannot ignore. It is clear that in order to obtain a valid divorce in North Carolina, the plaintiff or defendant must have resided in this State for at least six months next preceding the institution of the action for divorce. G.S. 50-8. The residence requirement is jurisdictional. Donnell v. Howell, 257 N.C. 175, 125 S.E. 2d 448 (1962). The cited statute requires that the plaintiff set forth in his or her verified complaint "... that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint. ...” The period of residence applies to an action for divorce from bed and board as well as to an action for absolute divorce. G.S. 50-8. 1 Lee, North Carolina Family Law § 42, at 190. The complaint filed in this action does not allege that either party had resided in the State for six months next preceding institution of the action. We are aware of the amendment of the pleadings by implied consent principle envisioned by G.S. 1A-1, Rule 15(b), and approved in Roberts v. Memorial Park, 281 N.C. 48, 187 S.E. 2d 721 (1972), but do not think the principle would apply in this case where the omitted allegation was necessary to confer jurisdiction. We hold that the trial court erred in •treating this cause as an action for divorce from bed and board. Defendant contends the court erred in charging the jury on constructive abandonment. We agree with the contention. In *519 3 Strong, N. C. Index 2d Divorce and Alimony § 8, at 330, we find: “It is not necessary, to constitute abandonment of a wife by the husband, that he leave her, but he may constructively abandon her by treating her with such cruelty as to compel her to leave him. ...” In the instant case, there was no contention, or evidence tending to show, that plaintiff left defendant; her evidence tended to show an actual abandonment by defendant. It is true that defendant contended that his separation from plaintiff was justified by her wrongful conduct toward him, and it might be argued that there is a similarity between conduct constituting constructive abandonment and conduct justifying one spouse to separate from the other. Nevertheless, we think defendant was entitled to have his defense of justification in leaving plaintiff submitted on instructions that were clear and unambiguous. We hold that the errors discussed above were sufficiently prejudicial to compel vacating the judgment and awarding a new trial. With respect to the findings of fact, conclusions of law and award of alimony and attorney fees, defendant contends the trial court did not find sufficient facts to permit a fair and complete review by the appellate court. We agree with this contention. G.S. 50-16.5 (a) provides that “ [ajlimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.” In the case at bar, the court made certain findings as to the estate, income and expenses of plaintiff, but it failed to make sufficient findings as to the estate, earnings, income and expenses of defendant. See Briggs v. Briggs, 21 N.C. App. 674, 205 S.E. 2d 547 (1974). For example, the court found that defendant received a salary in excess of $11,000 per year; although there was evidence tending to show defendant’s compensation after deductions for retirement and income taxes was much less, the court made no finding as to that. The court made no finding as to defendant’s other expenses and obligations. Considerable evidence was presented as to income received by the parties many months prior to the trial, but an award of alimony should be based on the estate, earnings, income, obliga *520 tions and expenses of the parties at the time the award is made. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E. 2d 144 (1971). For the reasons stated, the judgment appealed from is vacated and this cause is remanded for a New trial. Chief Judge Brock and Judge Clark concur.