Johnson v. Johnson , 237 N.C. 383 ( 1953 )

75 S.E.2d 109 (1953) 237 N.C. 383

JOHNSON
v.
JOHNSON.

No. 243.

Supreme Court of North Carolina.

March 18, 1953.

E. R. Temple, Jr., Smithfield, and J. R. Barefoot, Benson, for plaintiff, appellant.

Lyon & Lyon, Smithfield, for the defendant, appellee.

ERVIN, Justice.

These propositions are well settled:

1. When the husband sues the wife for an absolute divorce, the wife may plead a cause of action for divorce from bed and board as a cross action, and obtain upon a proper showing allowances from the estate or earnings of her husband for her support during the pendency of the action and for counsel fees for her attorneys. G.S. § 50-15; Nall v. Nall, 229 N.C. 598, 50 S.E.2d 737; Covington v. Covington, 215 N.C. 569, 2 S.E.2d 558; Barker v. Barker, 136 N.C. 316, 48 S.E. 733; Webber v. Webber, 79 N.C. 572.

2. Since the decision to the contrary in Reeves v. Reeves, 82 N.C. 348, is expressly abrogated in Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857, the wife may be allowed alimony pending the action and counsel fees in a suit against her for divorce, even though she seeks no affirmative relief and merely endeavors to defeat her husband's case. It follows, therefore, that in an action by the husband for an absolute divorce, the wife may deny the validity of the cause of action alleged by the husband, or plead an affirmative defense to it, and obtain upon a proper showing in either event allowances from the estate or earnings of the husband for her support during the pendency of the action and for counsel fees for her attorneys. Briggs v. Briggs, 215 N.C. 78, 1 S.E.2d 118; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436.

3. Where the husband sues the wife for an absolute divorce upon the ground of two years' separation under G.S. § 50-6, he is not required to establish as a constituent element of his cause of action that he is the injured party. Nevertheless, the law will not permit him to take advantage of his own wrong. Consequently, the wife may defeat the husband's action for an absolute divorce under G.S. § 50-6 by showing as an affirmative defense that the separation of the parties has been occasioned by the act of the husband in wilfully abandoning her. Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796; Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492; Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Reynolds v. Reynolds, 208 N.C. 428, 181 S.E. 338.

4. The superior court is empowered to "grant divorces from bed and board on application of the party injured, made as by law provided, * * * If either party abandons his or her family." G.S. § 50-7, subd. 1. See, in this connection: Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919; Horton v. Horton, 186 N.C. 332, 119 S.E. 490; Medlin v. Medlin, supra; Setzer v. Setzer, 128 N.C. 170, 38 S.E. 731.

When the transcript of the record in the instant case is laid alongside these rules, it is clear that Judge Burgwyn had power to allow alimony pending the action and counsel fees to the wife on the facts shown by her and found by him notwithstanding she is the defendant in the action. This is true for each of these reasons: (1) Her answer denies the validity of the cause of action stated in the complaint; (2) her answer pleads an affirmative defense to the cause of action alleged in the complaint; and (3) her answer pleads a cause of action for divorce from bed and board as a cross-action.

The order allowing alimony pending the action and counsel fees is affirmed.