Oliver v. . Oliver

WiNBORNE, J. The assignments of error principally relied upon by defendant are these: Did the court err: (1) In refusing motion of defendant for alimony pendente lite and counsel fees ? (2) In overruling her motions, aptly made, for judgment as in case of nonsuit? (3) In charging the jury with respect to residence of plaintiff; and (4) in withdrawing the fourth issue from consideration by the jury. Our views relative to these questions are in accord with those of the court below. (1) Upon the finding of fact with regard thereto, we find no error in the ruling of the judge below in denying motion of defendant for alimony pendente lite and counsel fees. Whether proceeding under the provisions of C. S., 1666, or at common law, the right to an allowance either for support pending the action or for expenses of the action, is predicated upon a finding that the wife is without sufficient means to cope with her husband in presenting their case before the court. 0. S., 1666; Medlin v. Medlin, 175 N. C., 529, 95 S. E., 857; Holloway v. Holloway, 214 N. C., 662, 200 S. E., 436. (2 and 3) The second and third questions may be properly considered together. The statute under which this action is prosecuted provides that: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of one year.” Public Laws 1937, chapter 100, amending Public Laws 1933, chapter 163, which amended Public Laws 1931, chapter 72. See Brown v. Brown, 213 N. C., 347, 193 S. E., 409. *304 In order to maintain an action for divorce under this statute, these facts must exist: (1) Marriage; (2) the husband and wife must have lived separate and apart for two years; and (3) the plaintiff, husband or wife, must have resided in the State of North Carolina for a period of one year. In the case in hand the first factor, the fact of marriage, is admitted. As to the second, “The word 'separation’ as applied to the legal status of a husband and wife means more than 'abandonment’; it means 'a cessation of cohabitation of husband and wife, by mutual agreement.’ ” Parker v. Parker, 210 N. C., 264, 186 S. E., 346; Lee v. Lee, 182 N. C., 61, 108 S. E., 352; Black’s Law Dictionary, Third Edition. When considered in the light of this definition of separation, the evidence in this aspect of the present case, though controverted, is abundantly sufficient to take the case to the jury. As to the third factor, defendant contends that the clause “the plaintiff . . . has resided in the State for a period of a year” means actual, physical presence in the State for that period of time. She, therefore, challenges the correctness of the law as declared by the court below, and applied to the evidence in the ease. While the exceptions relate to several portions of the charge, the following portion covered by Exception 6 is typical: “Now, Gentlemen of the Jury, the court instructs you as a matter of law that when a person actually ceases to dwell within a State for an uncertain period of time without any definite intention of returning, then his leaving the State under such circumstances makes him a nonresident of the State, although there may be a vague intention to return at some indefinite future time. “On the other hand, Gentlemen of the Jury, if a man or resident of North Carolina, who leaves the State for a temporary purpose and for a reasonable definite length of time, with the fixed intention of returning to North Carolina immediately at the end of that fixed period of time, rather than some indefinite idea of returning at some indefinite future time, then the court instructs you that that would not interrupt his residence in North Carolina; so that with reference to the evidence in this case the court instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that the plaintiff left Brevard, Transylvania County, North Carolina, or left North Carolina in October, 1939, having been up to that time and being then a resident of North Carolina, for Florida under the advice of a physician for the definite purpose of staying there during the winter months, and with a definite idea of returning to North Carolina immediately upon the passing of the severe months here in Western North Carolina, and that at all times during his temporary absence from the State of North Carolina in the State of Florida had the fixed intention of returning to North Carolina *305 under those circumstances, and always regarding North Carolina as his place of residence or home in Western North Carolina, the court instructs you that the plaintiff, under those facts, if you find those to be the facts from the evidence and by its greater weight, was a resident of the State of North Carolina during the period of his physical absence therefrom, during the time from October, 1939, up to 1940, and his residence in North Carolina under those facts, if you find those to be the facts from the evidence and by its greater weight, would not interrupt his previously established residence, if you find he did have a previous established residence, and so find from the evidence and by its greater weight.” Exception, directed to the second paragraph of the quoted charge, is not well taken. See Moore v. Moore, 130 N. C., 333, 41 S. E., 943. (4) 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. Hill v. Young, 217 N. C., 114, 6 S. E. (2d), 830; Saieed v. Abeyounis, 217 N. C., 644, 9 S. E. (2d), 399. When thus tested, the issues submitted in the present case meet all the requirements. While in the complaint it is alleged that plaintiff and defendant separated “through no fault of plaintiff,” and while in the answer it is averred that plaintiff willfully abandoned defendant without providing adequate support for her, the ease was tried upon the theory advanced by plaintiff that their separation was by mutual consent. In any event, the third issue, predicated upon the allegation in the complaint as above stated, is sufficient to present to the jury the proper inquiry as to the facts surrounding the separation, and to afford defendant opportunity to introduce all pertinent evidence in support of her contention that plaintiff had willfully abandoned her without providing adequate support, as alleged by her, and to apply the evidence fairly. The affirmative answer to that issue negatives the averment of defendant, and renders harmless any error that may have been committed in not submitting the fourth issue. Moreover, defendant does not deny her consent to a separation, but contends that her consent was to a separation, without divorce. Other exceptions have been considered and are found to be without merit. In the judgment below there is No error.