Byers v. . Byers

Seawell, J. In defining the cause for divorce created by it, chapter 100, Public Laws of 1937, under which this action is brought, reads as follows: “Section 1. 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.” The question posed for our consideration is whether a divorce a vinculo can be had under this law upon the ground that the parties “have lived separate and apart for two years,” without requiring that the separation shall be by deed of separation or other mutual agreement. There should be no difficulty in giving this question an immediate affirmative *302 answer, except for the contention of the defendant that the court in defining the legal significance of separation in Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549 — rendered since the statute went into force — still regards it necessary that the separation shall be by mutual consent. Oliver v. Oliver, supra, page 304. We do not regard the opinion in Oliver v. Oliver, supra, as having that legal effect, but the situation does call for some clarifying statement of the law. The history of divorce on the ground of separation discloses a number of statutes on the subject, interlaced with judicial interpretation and respectful legislative response. Omitting mention of previous legislation, section 1659 of the Consolidated Statutes (1919) provided for a divorce a vinculo if there had been a separation of husband and wife, and they had lived separate and apart for ten years, and the plaintiff in the suit had resided in the State for that period. Chapter 63, Public Laws of 1921, by amendment, reduced the requisite period of separation to five years; and the law as it then stood was construed in Lee v. Lee, 182 N. C., 61, 108 S. E., 352, as not extending “to granting the decree upon the suit of the party in default.” Sitierson v. Sitterson, 191 N. C., 319, 131 S. E., 641. The law was then amended by chapter 6, Public Laws of 1929, in a respect not material to this discussion. Chapter 72, Public Laws of 1931, with the limitation that “this Act shall be in addition to other acts and not construed as repealing other laws on the subject of divorces” (sec. 2), provides as follows : “Section 1. Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they have lived separate and apart for five years, and no children have been born to the marriage, and the plaintiff in the suit for divorce has resided in the State for that period.” Chapter 163, Public Laws of 1933, amending this Act (with some inexactness of reference not material to the point at issue), substituted the following: “Section 1. Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony, on application of either party, if and when there has been a separation of husband and wife, either under deed of separation or otherwise, and they 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.” Recognizing that the 1933 Act was intended to operate independently and was not affected by other fringing laws on the subject, the Court, *303 in Long v. Long, 206 N. C., 706, 175 S. E., 85, held that the requirement of C. S., 1659, tbat the suit must be at the instance “of the injured party” did not apply. Campbell v. Campbell, 207 N. C., 859, 176 S. E., 250. The statute was further construed in Parker v. Parker, 210 N. C., 264, 186 S. E., 346, where the decision was addressed more particularly to the wording of the statute — "when there has been a separation of husband and wife, either under deed of separation or otherwise” — and the Court held that a mutual agreement to separate was essential to divorce under the terms of the Act. Hyder v. Hyder, 210 N. C., 486, 187 S. E., 798; Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5. In the Parker case, supra, we find the definition of “separation,” quoted in Oliver v. Oliver, supra, which constitutes defendant’s sole reliance on this appeal: “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, supra, refers this definition to the case of Lee v. Lee, supra, and this, in turn, to Black’s Law Dictionary, which again refers it generally to “Matrimonial Law”; and so, to the ecclesiastical and common law of England, where such a separation .was accorded a legal status not thought to be inconsistent with the matrimonial policy. Perhaps, however, it was the assumption by the Court that the Legislature used the word in this technical sense, rather than its popular meaning, that induced the Court to construe the term “or otherwise” as meaning some other form of mutual consent. Upon this, the Legislature made its latest statutory expression on the subject in chapter 100, Public Laws of 1937, quoted supra, which is amendatory of the 1931 law and the 1933 law, and preserves its status as creating an independent cause of divorce. Sec. 2. In this Act, the word “separation” nowhere occurs. In view of the history of the subject which we have just related, it was apparently the intention of the Legislature to drop it from the law, with all the doctrinal implications which attended it, and to substitute for it words descriptive of a factual situation less amenable to interpretive changes. At the same time, it struck out the requirement that the separation should be by deed of separation or otherwise, and we have neither occasion nor power to read it into the law. To do so would be to find that the General Assembly had wasted effort on useless legislation. It may be well to observe that under Article II, sec. 10, of our Constitution, divorce is purely statutory, and is under no obligation to the ecclesiastical or common law. Long v. Long, supra: “The statute gives, and the statute takes away.” *304 It is still true that the bare fact of Irving separate and apart for the period of two years, standing alone, will not constitute a cause of action for divorce. There must be at least an intention on the part of one of the parties to cease cohabitation, and this must be shown to have existed at the time alleged as the beginning of the separation period; it must appear that the separation is with that definite purpose on the part of at least one of the parties. The exigencies of life and the necessity of making a livelihood may sometimes require that the husband shall absent himself from the wife for long periods — a situation which was not contemplated by. the law as a cause of divorce in fixing the period of separation. Woodruff v. Woodruff, supra. Competent evidence of the dealings of the parties with each other during this period may be considered by the jury upon this question; but the fact that the husband has meantime attempted to fulfill his obligations to the law in providing reasonable support of the wife— obligations he cannot avoid without consent of the wife — where his acts are attributable to that necessity, will not defeat his divorce. While it has been uniformly held by this Court that a husband may not obtain a divorce based, in whole or in part, upon his own wrong — Reynolds v. Reynolds, 208 N. C., 428, 430, 181 S. E., 338; Brown v. Brown, 213 N. C., 347, 349, 196 S. E., 333 — still, as pithily expressed by Mr. Justice Schenclc in Uyder v. Hyder, 215 N. C., 239, 240, “a husband is not compelled to live with his wife if he provides her adequate support.” It must, therefore, be conceded that the law under review does not contemplate, as essential to an effectual separation under the statute, a repudiation of all marital obligations, which, of itself, would destroy his remedy. The defendant has made a motion to amend her pleading here so as to set up as res judicata a former judgment between herself and her husband. While under C. S., 1414, this Court has certain power to allow amendments to pleadings, the record does not. justify its exercise upon this appeal. The motion may be renewed in the Superior Court. In the instructions noted there is error, entitling plaintiff to a new trial. It is so ordered. Error. New trial.