Earles v. Earles

PARKER, Judge.

In his first and eighth assignments of error defendant argues that “if the court sustains Assignment of Error Nos. 4 and 5, there is insufficient competent ¿nd admissible evidence to sustain the judgment in this mattér.” We disagree. At thé trial there was evidence that the parties moved into a motel room; that the defendant subsequently moved out; that after being released from the hospitál the plaintiff asked him to return ; and that the defendant refused, and never has returned to the plaintiff. As there was sufficient evidence to go to the jury on the issue of abandonment, defendant’s motions for a directed verdict were properly denied; These assignments of error are overruled.

Defendant next asserts that it was. error, for . the . trial court to submit to the jury the issues of whether the plaintiff was the “dependent spouse” and the defendant' the “supporting spouse.” We find merit in this contention. In Bennett v. Bennett, 24 N.C. App. 680, 211 S.E. 2d 835 (1975), we held that the issues of who is a “dependent spouse” and who is a “supporting spouse” are mixed questions of law and fact which can be best determined by the trial judge when he sets the amount of permanent alimony. Since these issues should have been decided by the trial court and not the jury, the verdict of the jury on these issues should be stricken from the record. A determination on these issues will have to be made by the trial judge.

In his third assignment of error defendant contends that (1) he should have been, permitted to amend his answer to allege condonation; and (2) the jury should have been instructed on the issue of condonation. We find this assignment of error without merit. At the trial there was no evidence that the plaintiff condoned the defendant’s abandonment; we therefore conclude the trial court properly refused to give instructions on this issue. Furthermore, the only evidence of condonation offered by defendant tended to show that the plaintiff condoned the indignities to which defendant subjected her. Since the issue of indignities was not submitted to the jury, any error in the trial court’s refusal to allow the defendant to amend his answer to allege condonation was harmless. This assignment of error is overruled.

Defendant next argues that the plaintiff should not have been allowed to testify regarding defendant’s statements that he loved another woman and would continue to see her. Defendant maintains that such evidence was inadmissible under G.S. 8-56, which provides in part that “ [n] othing herein shall render any husband or wife, competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery” and under G.S. 50-10 which provides in part that “[o]n such trial neither the husband nor wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact.” We disagree. The factual situation of this case clearly precludes the defendant from invoking the prohibitions contained in G.S. 8-56 since this was not an “action or proceeding in consequence of adultery,” or an “action or proceeding for divorce on account of adultery.” Moreover, while our Supreme Court has held that the provisions of G.S. 50-10 are not limited to actions in consequence of adultery or actions for divorce on account of adultery, but apply in “all divorce actions, including actions for alimony without divorce,” Hicks v. Hicks, 275 N.C. 370, 378, 167 S.E. 2d 761, 766 (1969), here there was no accusation or attempt by the plaintiff to. prove adultery. Adultery has been defined as “voluntary sexual intercourse of a married person with one other than his or her spouse.” 1 Lee, N. C. Family Law, § 65, p. 254. Plaintiff’s testimony tended to show only that the defendant saw another woman and that he loved her, not that he had sexual intercourse with her.' The case of Phillips v. Phillips, 9 N.C. App. 438, 176 S.E. 2d 379 (1970), relied on heavily by the defendant is distinguishable from the case at bar. In Phillips we held that a husband should not have been permitted to testify that he caught his wife in the woods with another man. This testimony clearly implied an act of sexual intercourse and tended to show adultery; it thus differs from the plaintiff’s testimony in this case. We also note that even if the plaintiff’s testimony should have been excluded, which we do not concede, this error was harmless because this testimony related only to the issue of indignities, which was not submitted to the jury. For the foregoing reasons, this assignment of error is overruled.

At the trial, counsel for the plaintiff cross-examined the defendant concerning certain personal letters he wrote to the plaintiff in 1971 and 1972. In his fifth assignment of error defendant contends that these letters were privileged confidential communications between husband and wife. He also maintains that his oral statements to the plaintiff that he loved another woman and would continue to see her were privileged. These contentions are without merit. We note that the defendant objected only to certain portions of the letters, while allowing other similar portions to be admitted without objection. At no time did counsel for the defendant make a specific objection to the admission of this evidence. Furthermore, it seems clear that the oral statements made by the defendant to the plaintiff were not intended to be confidential. The record shows that the defendant made similar statements to several other persons. Finally, as we have already pointed out, the admission of defendant’s letters and oral statements to the plaintiff could not have been prejudicial, even if erroneous, since this evidence related to the issue of indignities, which was not submitted to the jury.

In his sixth and seventh assignments of error defendant argues that in its instructions to the jury the trial court failed to give a clear statement of the facts and failed adequately to explain the law applicable to the facts. We have examined the charge as a whole, and conclude the trial court adequately stated the facts and the applicable law.

The judgment entered must be modified by deleting therefrom the third issue and the answer thereto. This issue must be left for determination by the court. In all other respects the judgment is affirmed.

Modified and affirmed.

Chief Judge Brock and Judge Hedrick concur.