Rouse v. Rouse

128 S.E.2d 865 (1963) 258 N.C. 520

James B. ROUSE
v.
Grace R. ROUSE.

No. 320.

Supreme Court of North Carolina.

January 11, 1963.

H. Frank Owens, Kinston, for defendant, appellant.

J. Harvey Turner, Kinston, for plaintiff, appellee.

SHARP, Justice.

Each of defendant's assignments of error presents this question: Does a judgment in an action instituted under G.S. § 50-16 decreeing that the husband has wilfully abandoned the wife and awarding her support and maintenance constitute a judicial separation which, two years thereafter, will permit the husband to obtain an absolute divorce? The answer is YES.

As pointed out by Bobbitt, J., in Richardson v. Richardson, 257 N.C. 705, 127 S.E.2d 525: "According to our decisions, the effect of a divorce a mensa et thoro, obtained by the wife on the ground her husband abandoned her, is to legalize their separation from the date of such judgment; and in such case the husband, after two years from the date of such judgment, may proceed to an absolute divorce. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444; Pruett v. Pruett, [247 N.C. 13, 100 S.E.2d 296] supra; Sears v. Sears, 253 N.C. 415, 117 S.E.2d 7."

In Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790 (a case which decided only that the Clerk of the Superior Court had no authority to enter a judgment by default and inquiry in a suit for alimony without divorce under G.S. § 50-16) we find the following assertion: "A divorce from bed and board is nothing more than a judicial separation; that is, an authorized separation of the husband and wife. Such divorce merely suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond. * * * This is precisely the effect of an action under G.S. 50-16, except that it is only available to the wife." (Emphasis added and citations omitted). We affirm this statement as the law.

The law does not require a man to live with his wife. It does, however, force him to support her in the absence of some compelling reason to the contrary. When the law, by civil judgment, has secured to the wife reasonable support and maintenance after a husband has wrongfully separated himself from her, it has required him to perform his legal obligation and can do no more. The separation is legalized from then on unless marital relations are resumed thereafter. A resumption of marital relations would likewise invalidate a divorce a mensa et thoro.

The defendant argues that this action should have been dismissed upon the authority of Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373. This contention results from a failure to distinguish the facts of that case from those of this one. Taylor's action for an absolute divorce under G.S. § 50-6 was not based upon a judicial separation but upon a criminal abandonment for which he had been convicted. After Taylor separated himself from his wife on June 18, 1958, they did not again live together. On September 3, 1958, he was convicted of abandonment and nonsupport of his wife and children. Thereafter no civil action was instituted by either party against the other. There was no judgment decreeing either a divorce a mensa et thoro or alimony without divorce to interrupt the original criminal abandonment and start a new period of separation. Taylor could not base his action on his own criminal conduct. Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Pruett v. Pruett, 247 N.C. 13, 100 S.E.2d 296.

In the instant case, as the judge correctly charged the jury, plaintiff began a new period of separation on the date the judgment was entered in the action instituted by the wife under G.S. § 50-16. Two years thereafter he was legally entitled to institute his action for divorce. Defendant's assignments of error are overruled.

No error.