Mallard v. Mallard , 234 N.C. 654 ( 1951 )

68 S.E.2d 247 (1951) 234 N.C. 654

MALLARD
v.
MALLARD.

No. 675.

Supreme Court of North Carolina.

December 12, 1951.

F. LeVerne Adams, Rowland and F. D. Hackett, Jr., Lumberton, for plaintiff, appellee.

Varser, McIntyre & Henry, Lumberton, for defendant, appellant.

ERVIN, Justice.

While the third issue is phrased in the language of G.S. § 50-5(4), the plaintiff bottoms his case on G.S. § 50-6. Moreover, the record reveals that the action was tried under the last mentioned statute in the court below.

G.S. § 50-6 specifies 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 or defendant in the suit for divorce has resided in the State for a period of six months."

A husband and wife live separate and apart for the prescribed period within the meaning of G.S. § 50-6 when, and only when, these two conditions concur: (1) They live separate and apart physically for an uninterrupted period of two years; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Moody v. Moody, 225 N.C. 89, 33 S.E.2d 491; Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902.

The testimony adduced by plaintiff is sufficient to establish that each of these things existed at the commencement of the action: That the plaintiff and defendant were husband and wife; that both of them had resided in the State for a period of six months; and that they had lived separate and apart within the meaning of the statute for an uninterrupted period of two years. This being true, the trial judge rightly refused to nonsuit the action. Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492.

The defendant assigns as error various portions of the charge in which the judge instructed the jury without explanation or qualification to answer the third issue in favor of the plaintiff, i. e., in the affirmative, in the event it found by the greater weight of the evidence that the plaintiff separated from his wife in the early part of January, 1948, with her consent or knowledge, and remained separate and apart from her for two years. Since the charge is designed to aid the jury clearly to comprehend the case and to arrive at a correct verdict, this instruction must be held for error on the testimony in the instant action. Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484.

There is sharp conflict between the evidence of the plaintiff and that of the defendant respecting the character of their separation. The testimony for the defendant indicates that the plaintiff was in pecuniary difficulties and out of work in January, 1948; that he thereafter absented himself from the defendant merely to obtain employment and thus make some provision for his family; and that both he and the defendant entertained a mutual intention during their resultant physical separation to resume living together as man and wife under one roof just as soon as the plaintiff was financially able to furnish shelter and support for his family at the place of his employment.

If this evidence is true, the plaintiff and the defendant were not living separate and apart in contemplation of law while they were physically separated. Byers v. Byers, supra. Despite its crucial bearing on the third issue, the judge took no note of it in his charge, except to state that the defendant contended that the jury ought to answer such issue in the negative because the plaintiff's "absence from her was simply in search of employment." He did not advise the jury as to whether such contention had any legal validity. State v. Herbin, 232 N.C. 318, 59 S.E.2d 635.

Since the judge did not explain to the jury the law arising on this testimony, the unqualified instruction challenged by the assignments of error directed the jury to answer the third issue in the affirmative in the event it found by the greater weight of the evidence that the plaintiff and the defendant had lived separate and apart physically for an uninterrupted period of two years, even though their physical separation was not accompanied by an intent on the part of either of them to cease their matrimonial cohabitation.

The instruction was highly prejudicial to the defendant on the present record, and entitles her to a

New trial.