Shore Ex Rel. Welborn v. Shore ( 1942 )

Stacy, C. J.

The first question for decision is whether a husband can set up a cross action for divorce in a proceeding brought by his wife under C. S., 1667, for alimony without divorce. The decisions and provisions of the statute point to a negative answer.

We have held that this section, C. S., 1667, “only applies to independent suits for alimony,” and may not be used by the wife as the basis of a cross action in a suit for divorce instituted by the husband. Silver v. Silver, ante, 191; Dawson v. Dawson, 211 N. C., 453, 190 S. E., 749; Adams v. Adams, 212 N. C., 373, 193 S. E., 274; Skittletharpe v. Skittletharpe, 130 N. C., 72, 40 S. E., 851; Reeves v. Reeves, 82 N. C., 348.

It was said in Hooper v. Hooper, 164 N. C., 1, 80 S. E., 64, “The statute is one solely for support.” It provides a remedy for an abandoned wife to obtain support from the estate or earnings of her husband. “If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence, . . . the wife may institute an action in the Superior Court,” etc. In Skittletharpe v. Skittletharpe, supra, the “defendant’s reasons and excuses for separating from his wife” were declared to be irrelevant and immaterial to the inquiry. True, this was said prior to the amendment of 1923 (ch. 52, Public Laws 1923), making it “competent for the husband to plead the adultery of the wife in bar of her right to such alimony.” Price v. Price, 188 N. C., 640, 125 S. E., 264. Later, in Hooper v. Hooper, supra, it was pointed out that in respect of an unfaithful wife, “the defendant may have his remedy in an action for divorce, and as the judgment in this proceeding is not final, he could then move to modify or set it aside.”

To permit tbe husband to set up a cross action for divorce in a proceeding brought by his wife under C. S., 1667, for alimony without divorce, would be to defeat the plaintiff's cause of action at the threshold of the case and remit the parties to whatever rights they may have under the cross action. If the wife is not allowed to cross complain against her husband for alimony without divorce in the husband’s suit for divorce, because of the terms of the statute, and we have so held in a number of cases, by the same token the husband should not be allowed to cross complain against his wife for divorce in her action for alimony without divorce. The plaintiff’s action is grounded on the existence of the marriage tie, and presupposes its continuance. The defendant’s cross action admits its existence, and seeks to dissolve it. The issues are contradictory and the remedies inconsistent. See Lykes v. Grove, 201 N. C., 254, 159 S. E., 360. Moreover, it would seem that in a matter of this kind, the parties should be afforded a modicum of equality in treatment, and the statute apparently so provides: “Provided further, that in all applications for alimony under this section it shall be competent for the husband to plead the adultery of the wife in bar of her right to such alimony.” Expressio facit cessare taciturn. Reeves v. Reeves, supra.

It is true that in an action for divorce, either absolute or from bed and board, it is permissible to set up a cross action for divorce, if accompanied by the requisite affidavit, etc. Cook v. Cook, 159 N. C., 46, 74 S. E., 639. But this is by virtue of other statutes, C. S., 519 and 522. Smith v. French, 141 N. C., 1, 53 S. E., 435. Here we are dealing with an act of Assembly complete within itself, which is not to be set at naught by the simple device of pleading.

In the light of the verdict, which may not be amended by setting aside a part of the issues and allowing the others to stand with assurance that no prejudice will result therefrom, Bundy v. Sutton, 207 N. C., 422, 177 S. E., 420; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32, the thought has prevailed that a new trial should be ordered. Judgment accordingly.

New trial.