Ollis v. Ollis

Higgins, J. In Best v. Best, 228 N.C. 9, 44 S.E. 2d 214, Justice Winborne sets out tbe allegations necessary in an action under G.S. 50-16, as follows: “When a wife bases ber action for alimony without divorce upon tbe ground tbat ber husband bas been guilty of cruel treatment of ber and of offering indignities to ber person within tbe meaning of tbe statute pertaining to divorce from bed and board, G.S. 50-1 (3) and (4), sbe ‘must meet tbe requisite’ of this statute, Pollard v. Pollard, 221 N.C. 46, 19 S.E. 2d 1, and not only set out with particularity tbe acts on tbe part of ber husband and upon wbicb she relies, but sbe is also required to allege, and consequently to prove, tbat such acts were without adequate provocation on her part.” In tbe case of Howell v. Howell, 223 N.C. 62, 65 S.E. 2d 169, Justice Denny states tbe following as tbe rule: “In an action for alimony without divorce (C.S. 1661, now G.S. 50-16), as in an action for divorce a mensa et thoro by the wife, she must not only set out with some particularity tbe acts of cruelty upon tbe part of tbe husband, but sbe must aver, and consequently offer proof, tbat such acts were without adequate provocation upon ber part. . . . Tbe omission of such allegation is fatal.” It is not enough for tbe wife to allege tbe husband has been abusive and violent toward ber, tbat she bas been made to fear for ber safety. Sbe must go further and allege specific acts and conduct on tbe part of tbe husband so tbat tbe court may see tbat bis conduct was in fact such as constituted a cause for divorce from bed and board. Not only must tbe wife specify tbe acts and conduct of tbe husband, but also sbe must set forth wbat, if anything sbe did to start or feed tbe fire of discord so tbat tbe court may determine whether sbe provoked tbe difficulty. Tbe plaintiff alleges “tbat tbe said defendant during tbe preceding 12 months bas repeatedly told tbe plaintiff to leave the borne in wbicb they were both living.” There is no allegation tbe plaintiff left or tbat tbe husband’s statement amounted to more than a request tbat sbe do so. Tbe complaint is likewise silent as to wbat tbe plaintiff did or said at tbe times tbe husband told ber to leave. To be ground for divorce a mensa *712 et tlvoro, and consequently basis for the plaintiff’s action under G.S. 50-16, the plaintiff must show that the defendant “maliciously turned her out of doors.” The plaintiff, on information and belief, charges also the defendant spent money lavishly on other women. She does not allege who they were, what their relationship, if any, to the defendant was, nor does she suggest any misconduct on the part of the defendant. The plaintiff alleges defendant failed to provide adequate support for her and Dixie Ann. If treated as a second cause of action (Oldham v. Oldham, 225 N.C. 476, 35 S.E. 2d 332), the complaint fails to state a cause of action. She admits in her complaint that she left the defendant. She does not allege specific acts and conduct on his part sufficient to justify her leaving. She does not allege the amount of support the defendant provided or what means he had, or what she deemed “adequate support.” The statute provides: “If any husband shall separate himself from his wife and shall fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life,” she may maintain an action for alimony without divorce. (Emphasis added.) The complaint in this action is deficient in that it fails to allege any ground for divorce, either absolute or from bed and board. It also fails to allege the husband has separated himself from his wife and failed to provide her and the child of the marriage with the necessary subsistence according to his means and condition in life. Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909; Carnes v. Carnes, 204 N.C. 636, 169 S.E. 222; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917; Jackson v. Jackson, 105 N.C. 433, 11 S.E. 173; White v. White, 84 N.C. 340. The demurrer should have been sustained. The order for alimony and counsel fees is vacated. Reversed. BaeNhill, C. J., and DeviN, J., took no part in the consideration or decision of this case.