Richardson v. Richardson

151 S.E.2d 12 (1966) 268 N.C. 538

Bertis Mae RICHARDSON
v.
Ernest McCain RICHARDSON.

No. 611.

Supreme Court of North Carolina.

November 23, 1966.

Ottway Burton, Asheboro, for plaintiff appellant.

Walker, Anderson, Bell & Ogburn, Asheboro, for defendant appellee.

BOBBITT, Justice.

Plaintiff's primary contention is that the court erred in granting defendant's motion for nonsuit.

With reference to the alleged abandonment: Plaintiff offered evidence tending to show that defendant, without any provocation by plaintiff, left the home on March 27, 1965, and thereafter lived elsewhere. Pertinent to what occurred on March 27, 1965, plaintiff testified: "When he left, he said he was going to leave and that he was going to stay away and I would say, ``Bud, you are making a mistake.' I said, ``Can't you think about what you are doing?' I said, ``Can't you try to do right?' and I said ``For Steve's sake, everybody's sake,' and he just couldn't agree with that. He said he was going to leave anyway."

One of the grounds for relief under G.S. § 50-16 exists "(i)f any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life." Defendant contends plaintiff's evidence discloses defendant had provided plaintiff and their son with subsistence and therefore nonsuit was proper.

G.S. § 50-16 also provides the wife is entitled to the relief prescribed therein if the husband "be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board."

"G.S. § 50-7 provides, as a ground for divorce from bed and board: ``1. If either party abandons his or her family.' (Italics added.) It is available to the husband as well as to the wife. Abandonment under G.S. § 50-7(1) is not synonymous with the criminal offense defined in G.S. § 14-322. ``In a prosecution under G.S. § 14-322, the State must establish (1) a wilful abandonment, and (2) a wilful failure to provide adequate support.' State v. Lucas, 242 N.C. 84, 86 S.E.2d 770, 772. True, the husband's wilful failure to provide adequate support for his wife may be evidence of his abandonment of her, but the mere fact that he provides adequate support for her does not in itself negative abandonment as used in G.S. § 50-7(1). ``A wife is entitled to her husband's society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or mitigated by a liberal provision for her support, but if the cohabitation is brought to an end without justification and without the consent of the wife and without the intention of renewing it, the matrimonial offense of desertion is complete.' 17 Am.Jur., Divorce and Separation sec. 98." Pruett v. Pruett, 247 N.C. 13, 23, 100 S.E.2d 296, 303. Accord: 24 Am.Jur.2d, Divorce and Separation, § 104; Nelson, Divorce and Annulment, Second Edition, Vol. I, § 4.05; Lee, North Carolina Family Law, Vol. 1, § 80, p. 305.

In Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852, the defendant (husband) assigned as error the allowance of alimony and counsel fees pendente lite. The order was based on a finding of fact "that the defendant, without just cause or reason, and without adequate provocation on the part of the plaintiff, * * * wilfully and deliberately abandoned his family within the meaning of G.S. 50-7(1)." The pendente lite order was affirmed. Higgins, J., after quoting with approval from Pruett v. Pruett, supra, stated: "A defendant may not abandon his wife and defeat an action under G.S. § 50-7(1) by making voluntary payments which he may abandon at will." In this connection, see Sguros v. Sguros, 252 N.C. 408, 114 S.E.2d 79.

In Deal v. Deal, 259 N.C. 489, 131 S.E. 2d 24, the wife's application for alimony pendente lite was denied on the ground the defendant was providing adequately for his wife and children. The court made no specific finding as to whether the husband had wilfully abandoned his wife and children. This Court affirmed the pendente lite order, basing its decision upon the presumption that the court below, "for the purposes of the motion, resolved the crucial issues of fact against plaintiff." It is noted that an allowance of a fee to plaintiff's counsel was made in said pendente lite order.

"The statute (G.S. § 50-16) provides two remedies, one for alimony without divorce, and another for subsistence and counsel fees pending trial and final disposition of the issues involved." Deal v. Deal, supra; Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443; Fogartie v. Fogartie, 236 N.C. 188, 72 S.E.2d 226. Only the first of these remedies is involved on this appeal. Alimony pendente lite is not involved. The trial below was on the merits.

Having reached the conclusion that the evidence, when considered in the light most favorable to plaintiff, was sufficient to support a finding that defendant without just cause abandoned plaintiff as alleged, and that the judgment of involuntary nonsuit must be reversed, we do not consider plaintiff's numerous assignments of error based on exceptions to rulings by the court with reference to the admissibility of evidence.

Reversed.