Thurston v. Thurston

124 S.E.2d 852 (1962) 256 N.C. 663

Annabelle Thornton THURSTON
v.
Doc Jones THURSTON.

No. 234.

Supreme Court of North Carolina.

April 11, 1962.

Lucas, Rand & Rose; Gardner, Connor & Lee, by W. A. Lucas, Raymond H. Taylor, Wilson, for defendant, appellant.

Battle, Winslow, Merrell, Scott & Wiley, by F. E. Winslow, Rocky Mount, John Webb, Wilson, for plaintiff, appellee.

HIGGINS, Justice.

The defendant's assignments of error challenge the court's action in (1) refusing to strike additional allegations of the complaint, (2) refusing to sustain the demurrer, (3) entering the order for alimony pendente lite, (4) granting the order restraining the defendant, pending this action, from instituting a suit for divorce other than in the courts of North Carolina.

The defendant's Assignments 1 and 2 cut into each other. The defendant first moved that certain allegations with respect to abandonment be stricken and, second, that his demurrer be sustained upon the ground the complaint does not allege facts to show that the defendant has separated himself from his wife and has failed to provide her and their child with adequate support.

The complaint alleges a wilful abandonment without cause, without consent, and against the wishes of the plaintiff. By way of detail the plaintiff alleges that on October 8, 1960, defendant packed his bags, left the home, stating at the time he was moving to Florida where "he might as well get a quickie divorce."

The defendant is not prejudiced by the court's refusal to grant his motion to strike. The allegations to which he objects do not violate the rules of good pleading. Counsel argue the demurrer should be sustained for that the complaint does not allege failure to provide adequate support and hence fails to allege abandonment. Justice Bobbitt, for this Court, in Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296, settled the question against defendant's contentions: "A wife is entitled to her husband's society and the protection of his name and home in cohabitation. A 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." (Citing authorities.)

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 Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, the defendant was obligated to make payments but threatened to get a divorce and stop them. The Court said: ``'The Court is of opinion that the jurisdiction of the court invoked under G.S. § 50-16 is not barred by the separation agreement pleaded, and that within the frame of her present action, the plaintiff may seek such relief as she may be entitled to have. * * * In so far as the jurisdiction of that court is concerned, the husband might have quit the payments at any time he saw fit. She was entitled to the security of a court order." Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923.

A wife's complaint states a cause of action for alimony without divorce under G.S. § 50-16 if it alleges separation without providing subsistence, if the husband is drunkard or spendthrift, or "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 states the grounds for divorce from bed and board: "1. If either party abandons his or her family." Thus plaintiff's complaint states a cause of action for alimony without divorce on the ground he has abandoned his family. McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544; Caddell v. Caddell, supra; Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R. 2d 436. On authority of the above and many other cases of like import, the court was required to overrule the demurrer.

The defendant alleges error in granting the order restraining the defendant from instituting a divorce proceeding in a foreign state. The court's findings of fact upon which it based the order are heretofore stated in full. The evidence sustains the findings. In fact, the defendant does not allege lack of evidentiary support. The order is challenged on two grounds, one of which has been disposed of against the defendant by our holding the plaintiff has stated a cause of action.

As a second ground, the defendant contends the plaintiff does not show danger, either real or apparent, that the plaintiff is likely to suffer irreparable injuries. On this subject, Am.Jur., 17A, Divorce and Separation, § 998, p. 182, says: "In accord with the general rules concerning the power of one state to enjoin the commencement or prosecution of an action in another state or country, a court of equity of a state in which the parties have had their matrimonial domicil and in which one of them continues to reside has the power, under appropriate circumstances, to enjoin the other from procuring a divorce in another jurisdiction. The plaintiff in a pending divorce action may, when jurisdiction over the defendant has been obtained, be entitled to an order enjoining the defendant from prosecuting a subsequent action for divorce in another state before the former action is determined."

The order issued by Judge Copeland is not directed against any foreign court. It is not directed against any official of such court. It is directed only against the defendant in this action who has been personally served with process in a proceeding involving the marital rights and obligations of the parties whose domicile has been Wilson County since their marriage in 1935. The purpose of the order is to prevent the defendant from going to a foreign jurisdiction and instituting an action for absolute divorce requiring the plaintiff to contest the action if she is able to find out where it is brought or compelling her to challenge the judgment by overcoming its prima facie effect under the full faith and credit clause of the United States Constitution. The defendant should be required to set up and litigate in North Carolina any defense he may have to the action pending here. Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558. It would be inequitable for the defendant to be permitted to delay the plaintiff's day in court and defeat any just claim she may be able to establish by acquiring a "quickie" divorce elsewhere. The objections to a restraining order discussed in Evans v. Morrow, 234 N.C. 600, 68 S.E.2d 258, and cases cited, are not present in this action. The equities alleged are sufficient to support the restraining order and to justify the court in continuing it to the hearing.

The orders of the superior court brought here for review by the writ of certiorari are

Affirmed.

SHARP, J., took no part in the consideration or decision of this case.