Ollis v. Ollis , 241 N.C. 709 ( 1955 )

86 S.E.2d 420 (1955) 241 N.C. 709

Edith Harrell OLLIS
v.
Lawrence Lamen OLLIS.

No. 161.

Supreme Court of North Carolina.

March 23, 1955.

John Kerr, Jr., Warrenton, for defendant-appellant.

Blackburn & Blackburn, Henderson, for plaintiff-appellee.

HIGGINS, Justice.

In Best v. Best, 228 N.C. 9, 44 S.E.2d 214, 216, Justice Winborne sets out the allegations necessary in an action under G.S. § 50-16, as follows: "When a wife bases her action for alimony without divorce upon the ground that her husband has been guilty of cruel treatment of her and of offering indignities to her person within the meaning of the statute pertaining to divorce from bed and board, G.S. 50-7(3) and (4), she ``must meet the requisite' of this statute, Pollard v. Pollard, 221 N.C. 46, 19 S.E.2d 1, and not only set out with particularity the acts on the part of her husband and upon which she relies, but she is also required to allege, and consequently to prove, that such acts were without adequate provocation on her part."

In the case of Howell v. Howell, 223 N.C. 62, 25 S.E.2d 169, 170, Justice Denny states the following as the rule: "In an action for alimony without divorce [C.S. 1667, now G.S. 50-16], as in an action for divorce a mensa et thoro by the wife, she must not only set out with some particularity the acts of cruelty upon the part of the husband, but she must aver, and consequently offer proof, that such acts were without adequate provocation upon her part. * * * The omission of such allegation is fatal".

It is not enough for the wife to allege the husband has been abusive and violent toward her, that she has been made to fear for her safety. She must go further and allege specific acts and conduct on the part of the husband so that the court may see that his conduct was in fact such as constituted a cause for divorce from bed and board. Not only must the wife specify the acts and conduct of the husband, but also she must set forth what, if anything, she did to start or feed the fire of discord so that the court may determine whether she provoked the difficulty.

The plaintiff alleges "that the said defendant during the preceding 12 months has repeatedly told the plaintiff to leave the home in which they were both living." There is no allegation the plaintiff left or that the husband's statement amounted to more than a request that she do so. The complaint is likewise silent as to what the plaintiff did or said at the times the husband told her to leave. To be ground for divorce a mensa et thoro, and consequently basis for the plaintiff's action under G.S. § 50-16, the plaintiff must show that the defendant "maliciously turned her out of doors."

The plaintiff, on information and belief, charges also the defendant spent money lavishly on other women. She does not allege who they were, what their relationship, if any, to the defendant was, nor does she suggest any misconduct on the part of the defendant.

The plaintiff alleges defendant failed to provide adequate support for her and Dixie Ann. If treated as a second cause of action, Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332, the complaint fails to state a cause of action. She admits in her complaint that she left the defendant. She does not allege specific acts and conduct on his part sufficient to justify her leaving. She does not allege the amount of support the defendant provided or what means he had, or what she deemed "adequate support." The statute provides: "If any husband shall separate himself from his wife and shall fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life," she may maintain an action for alimony without divorce. (Emphasis added.)

The complaint in this action is deficient in that it fails to allege any ground for divorce, either absolute or from bed and board. It also fails to allege the husband has separated himself from his wife and failed to provide her and the child of the marriage with the necessary subsistence according to his means and condition in life. Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909; Carnes v. Carnes, 204 N.C. 636, 169 S.E. 222; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917; Jackson v. Jackson, 105 N.C. 433, 11 S.E. 173; White v. White, 84 N.C. 340.

The demurrer should have been sustained. The order for alimony and counsel fees is vacated.

Reversed.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.