Traywick v. Traywick

221 S.E.2d 85 (1976) 28 N.C. App. 291

Vivian R. TRAYWICK
v.
Ralph C. TRAYWICK.

No. 7520DC696.

Court of Appeals of North Carolina.

January 7, 1976.

Clark & Griffin by Richard S. Clark, Monroe, for plaintiff appellee.

Thomas & Harrington by L. E. Harrington, Monroe, and William H. Abernathy, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant contends the court erred in admitting testimony by plaintiff concerning his visits with Mrs. Nelson. The contention has no merit. Testimony by a wife concerning her husband's relationship with another woman will be excluded under G.S. 50-10 when it clearly implies an act of adultery, even though the words "adultery" or "intercourse" are not used. Phillips v. Phillips, 9 N.C.App. 438, 176 S.E.2d 379 (1970). But when there is no clear implication of intercourse, the testimony is admissible. Earles v. Earles, 26 N.C.App. 559, 216 S.E.2d 739 (1975), cert. denied, 288 N.C. 239, 217 S.E.2d 679 (1975). Here, plaintiff was not attempting to prove that defendant committed adultery. She contended instead that defendant offered her indignities by spending more time with Mrs. Nelson than with her and making it clear that he preferred Mrs. Nelson's company to that of his own wife. Her testimony was properly admitted under Earles.

Defendant contends the court erred in excluding a tape recording of a conversation in which plaintiff admitted that she had spat in his face. We hold that the tape was properly excluded for the reason that it was not authenticated in the manner required. See State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).

Defendant contends the court erred in giving the following instructions to the jury:

"The Court instructs you, if you find from the evidence and by its greater weight that the defendant did on various times assault his wife or threaten his wife or display a firearm in her presence with a menacing attitude or threatening attitude, then it would be your duty to answer the (first) issue yes if you are satisfied from the evidence and by its greater weight. If you are not so satisfied, then you should answer it no." (Emphasis added.)

* * * * * *

"The Court instructs you if you find that to be a fact by the evidence and by its greater weight, that Mr. Traywick was visiting in the home of this lady in the middle of the night or in undue number of hours or that for no good cause he threw her out of their bedroom, that he cursed her, if you find that to be a fact from the evidence and by its greater weight, then the Court instructs you, you should answer that second issue yes. If you are not so satisfied you would answer it no." (Emphasis added.)

This contention has merit.

In 1 Lee, N.C. Family Law, § 81, pp. 306-307, we find: "There is no arbitrary rule or well-defined test for determining whether particular acts or conduct constitute cruelty; each case must be determined by its own facts and the surrounding circumstances. The status of the parties and their sensibilities, including their social position, refinement, and intelligence, as well as the character and nature of the acts or violence alleged, are among the factors considered. In 1955, the Supreme Court of North Carolina said: ``It would be impossible, and also unwise, to attempt to define with accuracy, so as to fit all cases, what is cruel treatment by a husband that compels his wife to leave him. There is a species of cruelty, which cuts deeper than a blow.. . . '" Citing Bailey v. Bailey, 243 N.C. 412, 415, 90 S.E.2d 696, 699 (1956).

The first instruction challenged above had the effect of charging what would, rather than what could, constitute cruel or barbarous treatment. While a finding that defendant on various times assaulted plaintiff might permit an affirmative answer on the first issue, such a finding would not compel an affirmative answer. With respect to threats, there are degrees ranging from mild to violent threats. Certainly, a wife is not always entitled to alimony when her husband "threatens" her, however mildly, on several occasions.

The second challenged instruction related to plaintiff's contentions of indignities. In Lee, § 82, p. 311, we find: ". . . The fundamental characteristic of indignities is that it must consist of a course of conduct or continued treatment which renders the condition of the injured party intolerable and life burdensome. The indignities must be repeated and persisted in over a period of time." (Emphasis added.) The quoted instruction called for an affirmative answer to the second issue if the jury found that even on one occasion defendant visited in Mrs. Nelson's home in the middle of the night or "in undue number of hours".

We hold that the challenged instructions were erroneous and that defendant was prejudiced by them, entitling him to a new trial.

New trial.

BROCK, C. J., and MORRIS, J., concur.