Anthony v. Anthony

Hedeick, J.

The first group of assignments of error in this case deal with the trial judge’s sustaining a demurrer to the further answer and defense and cross action which was interposed at the conclusion of all evidence. A demurrer to a cross action must be overruled if the allegations of the answer will entitle the defendant to any affirmative relief. Ayers v. Ayers, 269 N.C. 443, 152 S.E. 2d 468 (1967).

The further answer and defense and cross action alleges:

“That on or about the 17th day of December, 1962, and prior thereto, the plaintiff . . . did continually and often commit adultery with Minnie Pearl Fredale and other persons unknown to this defendant.”

G.S. 50-16.2 provides, in part:

“A dependent spouse is entitled to an order for alimony when:

“(1) The supporting spouse has committed adultery.”

Judge Whitener ruled:

“The court is going to reverse its ruling and sustain the demurrer of the plaintiff to the further answer and cross action of the defendant. The demurrer having been made to the action for alimony without divorce brought by the defendant in the cross action is sustained.”

We hold that the allegation in the further answer and defense and cross action that the plaintiff, husband, had committed adultery is sufficient to withstand a demurrer, in view of G.S. 50-16.2(1). Mrs. Anthony’s further answer, defense and cross action for alimony without divorce could not be dismissed since it could withstand a demurrer through the statement of at least one good cause of action. Ayers v. Ayers, supra. It follows that the order sustaining the demurrer must be set aside. In addition to praying for alimony without divorce, the defendant in her answer sought also to have the plaintiff’s action for absolute divorce dismissed.

Judge Whitener’s judgment recites that . . no answer has been filed by the defendant and that the time for filing answer has elapsed and that no extension of time has been requested or granted by the court.” This is clearly inappropriate in the instant case since the defendant’s answer, further answer, defense and cross action appears in the record and was never stricken by the court or withdrawn by the defendant. We must therefore assume, that after sustaining the demurrer, Judge Whitener erroneously failed to consider the defendant’s pleadings in any respect. The defendant was entitled to have her answer, further answer, defense and cross action considered before the court proceeded to answer the issues and enter a judgment.

Since the court had jurisdiction of the minor children and of the plaintiff and defendant in this action, the order providing that the plaintiff (father) pay $30.00 per week for their support is not disturbed.

For the reasons stated, the order sustaining the demurrer to the defendant’s further answer, defense and cross action is reversed and the judgment awarding the plaintiff an absolute divorce is reversed.

Reversed.

MoRRis and Parrer, JJ., concur.