Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923 (N.C., 1953)
CADDELL,
v.
CADDELL.
No. 527
Supreme Court of North Carolina.
Jan. 6, 1953
Henry E. Fisher, Charlotte, for plaintiff, appellant.
Elbert E. Foster, Charlotte, for defendant, appellee.
JOHNSON, Justice.
The plaintiff is suing for alimony without divorce under G.S. § 50-16.
By the terms of this statute a wife may institute an action to have a reasonable subsistence and counsel fees allotted to her from the estate or earnings of the husband in either of these two general classes of factual situations: (1) ‘If any husband shall separate himself from his wife and fail to provide her and the children of the marriage with the necessary subsistence according to his means and condition in life, or if he shall be a drunkard or spendthrift’; or (2) if he ‘be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, * * *.’
Accordingly, where a wife elects to proceed under the first classification of causes mentioned in the statute, it suffices for her to allege and prove (1) the existence of a valid marriage between the parties, and (2) that the husband has separated himself from the wife and failed to provide her (and the children of the marriage) with necessary subsistence according to his means–or instead of the latter, that the husband is a drunkard or spendthrift. Crews v. Crews, 175 N.C. 168, 95 S.E. 149.
Nevertheless, where the pleadings place in issue the crucial question whether the husband has separated himself from the wife, there is nothing in the language or meaning of the statute which precludes the husband from proving as a defense that in point of fact and in legal contemplation it was the wife who separated herself from the husband. Crews v. Crews, supra; Byerly v. Byerly, 194 N.C. 532, 140 S.E. 158; Masten v. Masten, 216 N.C. 24, 3 S.E.2d 274. And this is so, notwithstanding what was said in Skittletharpe v. Skittletharpe, 130 N.C. 72, 40 S.E. 851; Hooper v. Hooper, 164 N.C. 1, 80 S.E. 64; Allen v. Allen, 180 N.C. 465, 105 S.E. 11; and Shore v. Shore, 220 N.C. 802, 18 S.E.2d 353. See also 17 Am. Jur., Divorce and Separation, Sec. 101; Annotation, 19 A.L.R.2d 1428.
Here it should be kept in mind that Chapter 24, Public Laws of 1919, rewrote
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the statute, G.S. § 50-16, and extended its scope to include as [236 N.C. 690] additional grounds for relief the causes mentioned in the second classification, i.e., misconduct or acts of the husband constituting cause for divorce, either absolute or from bed and board.
In the case at hand it is noted that the plaintiff originally sought relief within the first classification of causes mentioned in G.S. § 50-16 by alleging succinctly, and following the language of the statute, that the defendant husband ‘separated himself from the plaintiff * * * (and) failed to provide her and their children with the necessary subsistence according to his means and condition in life.’
The question whether the plaintiff’s allegations were sufficient to have withstood the defendant’s demurrer ore tenus is not presented by this appeal. But see Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909; Best v. Best, 228 N.C. 9, 44 S.E.2d 214. The plaintiff, rather than hazard a decision on the demurrer ore tenus, sought and obtained leave to amend. The amendment charges that ‘The defendant, without fault or misconduct on the part of the plaintiff, wrongfully separated himself from the plaintiff and the children * * *.’ It thus appears that the plaintiff sought to adjust her allegations to the point of eliminating all grounds of challenge raised by the demurrer. Whether she was required to go that far is not presented for review. At any rate, the amendment was allowed without objection. It seems to have been accepted by the court and by both litigants as being sufficient in form to transform the plaintiff’s cause of action into one charging the defendant with abandonment under G.S. § 50-7(1).
Thereupon the case was tried upon the theory that the burden was upon the plaintiff to satisfy the jury that the separation was wrongful, amounting to an abandonment of the plaintiff by the defendant within the meaning of G.S. § 50-7(1).
As to this, the rule is that the theory upon which a case is tried in the lower court must prevail in considering the appeal and in interpreting the record and determining the validity of the exceptions. General Finance & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601; Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.
Thus, under the theory of the trial, the controlling issue for determination in the court below was whether the defendant’s conduct in separating from the plaintiff amounted to an abandonment of the plaintiff.
This Court, in applying the provisions of G.S. § 50-7(1), has never undertaken to formulate any all-embracing definition or rule of general application respecting what conduct on the part of one spouse will justify the other in withdrawing from the marital relation, and each case must be determined in large measure upon its own particular circumstances. Ordinarily, however, the withdrawing spouse is not justified in leaving the other unless the conduct of the latter is such as would likely render [236 N.C. 691] it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect, and constitute ground in itself for divorce at least from bed and board. See 27 C.J.S., Divorce, § 56, page 603; 17 Am.Jur., Divorce and Separation, Sections 88, 89, and 90; Brooks v. Brooks, 226 N.C. 280, bot. page 284, 37 S.E.2d 909; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919; Setzer v. Setzer, 128 N.C. 170, 38 S.E. 731; Cf. Hyder v. Hyder, 215 N.C. 239, 1 S.E.2d 540.
Manifestly, the second issue as framed and submitted, and to which no exception was taken by either party, was sufficient in form to have presented to the jury, under proper instructions, the determinative question at issue.
The record indicates, however, that the trial court attempted to split this controlling issue and submit it to the jury in two subordinate phases. And conceding, without deciding, that under proper issues and appropriate instructions this dual mode of submitting the main issue might have been followed without prejudicial effect, nevertheless we are constrained to the view that the court’s instructions as given presented the case in an erroneous light.
First, in respect to the crucial words ‘wrongful separation’ appearing in
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the second issue and on which the case should have been made to turn, it is observed that the court gave the jury from Black’s Law Dictionary an abstract definition of the word ‘wrongful,’ but nowhere in the charge did the court tell the jury what in law constitutes a ‘wrongful separation’ or under which phase or phases of the evidence, if so found, the jury should or should not find the separation was wrongful.
And, secondly, in connection with the third issue, it is manifest that the court in telling the jury the wife had ‘to be free of fault’ and that the burden was on her to satisfy the jury from the evidence that ‘she was blameless,’ placed on her burdens materially heavier than those imposed by the law.
In the light of the charge as given on both the controversial issues–second and third–indicating a misapplication of the pertinent principles of law, we think the verdict and judgment may not be amended, as suggested by plaintiff, by setting aside the third issue and letting the others stand, because this would unduly prejudice the defendant. Therefore the case will be remanded for another hearing, Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477, and it is so ordered.
New trial.
PARKER, J., took no part in the consideration or decision of this case.