Earp v. Earp, 277 S.E.2d 877, 52 N.C.App. 145 (N.C. App., 1981)
Bertha J. EARP v. Roy L. EARP.
No. 8010DC873.
Court of Appeals of North Carolina.
May 19, 1981.
Emanuel & Thompson by W. Hugh Thompson, Raleigh, for plaintiff-appellant.
Boyce, Mitchell, Burns & Smith by Eugene Boyce and Greg L. Hinshaw, Raleigh, for defendant-appellee.
WELLS, Judge.
In her first assignment of error, plaintiff contends that the trial court committed prejudicial error by its pretrial determination, based on the pleadings, that there was condonation by both plaintiff and defendant as a result of the events of 15, 16, and 17 November 1979. As is made clear by the language of his pretrial order, Judge Greene ruled that plaintiff, by resuming the marital relationship on 15, 16, and 17 of November 1979 had condoned and forgiven defendant’s previous offenses.
The determinative aspect of this issue, however, is whether condonation operates to forever forgive previous indignities or acts of cruelty. Since the early case of Gordon v. Gordon, 88 N.C. 45 (1883), our appellate courts have consistently adhered to the rule that condonation is a conditional forgiveness. We quote in pertinent part from Gordon:
Condonation … is strictly a technical word. It had its origin in the ecclesiastical court of England and means “forgiveness with condition.” The condition is, that the original offence is forgiven, if the delinquent will abstain from the commission of a like offence afterwards, and moreover, treat the forgiving party in all respects with conjugal kindness (cited authority[52 N.C.App. 148] omitted). Condonation extinguishes the right of complaint, except for subsequent acts, and is accompanied with an implied condition that the injury shall not be repeated, and that a repetition of the injury takes away the condonation, and operates as a reviver of the former acts (cited authority omitted).
88 N.C. at 50-51.
For restatement of the rule in subsequent cases, see, Lassiter v. Lassiter, 92 N.C. 129, 136 (1885); Page v. Page, 167 N.C. 346, 348, 83 S.E. 625, 626 (1914); Eggleston v. Eggleston, 228 N.C. 668, 679, 47 S.E.2d 243, 250 (1948); Cushing v. Cushing, 263 N.C. 181, 187-88, 139 S.E.2d 217, 222-23 (1964); Malloy v. Malloy, 33 N.C.App. 56, 60, 234 S.E.2d 199, 202 (1977). See also, 1 Lee, N.C. Family Law § 87, at 404-10 (1979).
We hold that plaintiff’s particularized allegations of indignities and abandonment between 17 and 27 November 1979 operated to revive her complaint as to defendant’s acts of cruelty, indignities, and abandonment prior to 15 November 1979 and that the trial court erred in dismissing those prior offenses from her claim for relief. Compare, Cushing v. Cushing, supra. Compare also, Privette v. Privette, 30 N.C.App. 305, 227 S.E.2d 137 (1976), where there was no separation, but continued acts of cruelty and indignities during continued cohabitation. This Court held the complaining spouse did not condone the continued offenses against her by continuing to cohabitate until she sought relief in her G.S. 50-16 action.
Page 880
Plaintiff also asserts that the issue of whether plaintiff condoned defendant’s prior conduct was not properly before the trial judge at the hearing on defendant’s motion, because defendant failed to affirmatively allege the defense of condonation in his pleadings. Ordinarily, as an affirmative defense, condonation must be alleged in defendant’s pleadings. Hudson v. Hudson, 21 N.C.App. 412, 415, 204 S.E.2d 697, 699 (1974); compare, Malloy v. Malloy, supra, 33 N.C.App. at 59, 234 S.E.2d at 201. Our Supreme Court has held, however, that when plaintiff’s pleadings allege cohabitation subsequent to defendant’s misconduct, plaintiff’s claim is properly demurrable for condonation even absent such allegations in defendant’s pleadings. Cushing v. Cushing, supra, 263 N.C. at 188, 139 S.E.2d at 223. Because plaintiff, in both her complaint and reply, alleged [52 N.C.App. 149] the resumption of cohabitation by the parties, we hold that the trial judge properly considered the question of plaintiff’s condonation of defendant’s prior conduct in ruling on defendant’s motion to dismiss. Cushing v. Cushing, supra.
As plaintiff’s other asserted errors in the trial are not likely to recur on retrial, we elect not to discuss them in this appeal.
For the reasons stated, there must be a
New Trial.
VAUGHN and CLARK, JJ., concur.