Owens v. Owens , 28 N.C. App. 713 ( 1976 )

222 S.E.2d 704 (1976) 28 N.C. App. 713

Alberta C. OWENS
v.
John R. OWENS.

No. 7515DC820.

Court of Appeals of North Carolina.

March 17, 1976.

Smith, Patterson, Follin, Curtis & James by Marion G. Follin, III, Greensboro, Latham, Wood & Cooper by James F. Latham, Burlington, for plaintiff-appellee.

Seawell, Pollock, Fullenwider, Van Camp & Robbins, P. A., by James R. Van Camp and Bruce T. Cunningham, Jr., Carthage, for defendant-appellant.

CLARK, Judge.

Where adultery is pleaded in bar in an action for alimony or alimony pendente lite, an award will not be sustained in the absence of the finding of fact on the issue of adultery in favor of the party seeking the award. G.S. 50-16.6(a); Foster v. Foster, 25 N.C.App. 676, 214 S.E.2d 264 (1975).

In support of the trial court's ruling that the evidence of adultery by the plaintiff was not sufficient to submit to the jury, plaintiff contends that the defendant offered evidence of opportunity but not inclination, and relies on the following statement in Hicks v. Hicks, 4 N.C.App. 28, 35, 165 S.E.2d 681, 686, reversed on other grounds, 275 N.C. 370, 167 S.E.2d 761 (1969):

". . . It is settled that, where circumstantial evidence is relied upon to establish adultery, there must be evidence of both inclination and opportunity on the part of the party charged. 1 Lee, N.C. Family Law, § 65, p. 262. . . ."

In support of this proposition of law Lee cites several treatises, including Nelson, Divorce and Annulment (2d Ed.).

In Nelson, supra, § 5.14 it is stated:

"One of the factors necessary to making out a case of adultery by circumstantial evidence is proof of adulterous disposition or inclination to commit adultery. Such a disposition or inclination may be indicated by a habit of fondling women generally, consorting with prostitutes, illicit relationship with the same person prior to marriage, or that the correspondent is a former spouse of the party charged."

But in § 5.15 the following appears:

"It has been held, repeatedly, that it is not sufficient to prove adultery that there was more or less ample opportunity for it to occur. But opportunity plus other improper circumstances indicative of the offense, such as occupancy of the same room or same bed at night, may well, unexplained, lead to a finding of adultery."

Both 27A C.J.S. Divorce § 139(2)b. and 24 Am.Jur.2d, Divorce and Separation, § 369 substitute "adulterous disposition" for "inclination". In 27A C.J.S., supra, at 480, it is stated: "In the absence of evidence of an adulterous inclination, proof of opportunity to commit adultery is not sufficient to establish the offense, unless it occurs under incriminating circumstances." (Emphasis added)

It appears from the language used in Nelson, supra, § 5.15 that "opportunity plus other improper circumstances indicative of the offense", and from the language used in 27A C.J.S., supra, at 480, that "proof of opportunity to commit adultery is not sufficient. . . unless it occurs under incriminating circumstances" do not sustain the hard and fast rule of law that if circumstantial evidence is relied on to establish adultery there must be evidence of both inclination and opportunity. Further, an examination of the cases cited by Nelson reveals that in many of them circumstantial evidence of adultery was held to be sufficient though there was no evidence of inclination or adulterous disposition. See Keyes v. Keyes, 252 Miss. 138, 171 So. 2d 489 (1965); Poole v. Poole (La.App.), 189 So. 2d 75 (1966).

An examination of the cases in North Carolina, both civil and criminal, reveals that adultery may be proven by circumstantial evidence, that the evidence must be more than that which raises a suspicion or conjecture, and must show more than a mere opportunity. State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948); State v. Gordon, 225 N.C. 757, 36 S.E.2d 143 (1945); State v. Davenport, 225 N.C. 13, 33 S.E.2d 136 (1945); State v. Woodell, 211 N.C. 635, 191 S.E. 334 (1937); Burroughs v. Burroughs, 160 N.C. 515, 76 S.E. 478 (1928); Warner v. Torrence, 2 N.C.App. 384, 163 S.E.2d 90 (1968). We do not find in any of these cases any rule of law requiring circumstantial evidence of both opportunity and inclination to prove adultery, except the above-quoted dicta in Hicks, supra. We do not overrule Hicks but repudiate the quoted dicta.

We consider it unwise to adopt general rules as to what will or will not constitute proof of adultery, but the determination must be made with reference to the facts of each case. In some cases evidence of opportunity and incriminating or improper circumstances, without evidence of inclination or adulterous disposition, may be such as to lead a just and reasonable man to the conclusion of adulterous intercourse. State v. Davenport, supra. If so, the evidence should be submitted on an issue of adultery to the jury so that it may judge the probative force of the evidence.

Sub judice, the evidence of adultery is conflicting, but we find it is sufficient to be submitted to the jury on the issue of plaintiff's adultery, and the failure of the trial court to do so is error.

In awarding alimony in the lump sum of $75,000, it appears that the trial court based the award on earning capacity without finding that defendant had disregarded his material obligation to support his wife, on the shares of stock in a possibly defunct corporation without finding the value of the stock, and on the possibility of the defendant's inheriting property from his father. We must remand for a new trial, which will include the determination of alimony and counsel fees, if appropriate, based on appropriate findings of fact. We order a

New trial.

MORRIS and VAUGHN, JJ., concur.