Plaintiff appeals from the adjudication that he is the father of defendant’s child, Rhonda. Defendant appeals from the judgment dismissing her cross action and from the decree awarding plaintiff an absolute divorce.
Plaintiff’s complaint alleges a cause of action for divorce on the ground of one year’s separation. G.S. 50-6. Defendant’s answer denies the separation as alleged and sets up a cross action for alimony without divorce upon allegations that plaintiff had abandoned her and their child, born after plaintiff had separated himself from defendant. G.S. 50-16. By reply plaintiff denies defendant’s allegations of abandonment ánd paternity and, in bar of alimony, pleads that the agreement of 10 March 1965 had legalized their separation from that date and released him from any further obligation to defendant. By rebutter, defendant pleads the invalidity of the separation agreement. This method of pleading was approved in
Lawson v. Bennett,
In addition to her allegation that the deed of separation had been rescinded by subsequent sexual relations,
Jones v. Lewis,
Until the deed of separation is rescinded, defendant cannot attack the legality of the separation or obtain alimony from plaintiff.
O’Brien v. O’Brien,
Defendant’s evidence tended to show that at the time she signed the deed of separation, she was an infant 17 years of age. Absent an enabling statute which provides a different rulé, an infant’s contract with his or her spouse is subject to the general principle that the deeds and contracts of an infant (except for a narrowly limited class of contracts not applicable here) are voidable at his election within a reasonable time after he comes of age. 27 Am. Jur.
Infants
§ 16; 3 Lee, N. C. Family Law § 270 (1963);
Fisher v. Motor Co.,
249
*195
N.C. 617,
Since 3 June 1965, G.S. 52-10.1 has empowered any married couple, both of whom are 18 years of age or over, to execute a binding separation agreement upon compliance with' its terms. In no event could this statute have any application to the agreement in suit, which was acknowledged 11 March 1965, At that time, the applicable statute, G.S. 52-13 (now G.S. 52-10), provided that “any persons of full age about to be married, and, subject to § 52-12 (now 52-6), any married person, may release and quitclaim such rights which they might respectively acquire or may have acquired by marriage in the property of each other. . . .” However, it was held in
Motley v.
Motley,
In defendant’s rebutter, she has pled her infancy and prayed that the deed of separation be declared null and void. Even if G.S. 52-13 be construed as empowering all married minors to'release their rights in the
property
of their spouses, it did not authorize the minor wife to release her right to support, and her prayer that the deed of separation be declared null and void was a sufficient disaffirmance of the agreement insofar as it purported to release plaintiff from this obligation.
Millsaps v. Estes,
With reference to her pleas that she lacked sufficient mental capacity to execute the agreement, and that it was unfair and fraudulent as to her, defendant’s evidence, taken in the light most favorable to her, was sufficient to establish these facts: She was mentally disturbed, and plaintiff, who had made an appointment with a psychiatrist to see defendant on 22 March 1965, well knew her condition. Notwithstanding, on 11 March 1965, he took her to the office of his attorney where, for $100.00 in cash, she was induced to sign a deed of separation releasing plaintiff from all obligation to support her and waiving all her interest in his property. Defendant had no attorney to advise her.
From the foregoing facts, the jury could find that at the time defendant signed the separation agreement she lacked the mental capacity to understand the nature of the act in which she was engaged, its scope and consequences; that the agreement was grossly unfair to her; and that she had been overreached.
Goins v. McLoud,
The relationship between husband and wife is the most confidential of all relationships, and transactions between.them, to be valid,
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must be fair and reasonable.
Fulp v. Fulp,
Defendant’s evidence was also plenary to support a finding by the jury that plaintiff, without just cause, abandoned defendant on 6 March 1965, as alleged.
Richardson v. Richardson,
The court erred in dismissing defendant’s cross action. This error made any further proceedings in plaintiff’s action for divorce likewise erroneous. Defendant’s assignments of error must be sustained.
Plaintiff’s appeal and assignments of error bear upon the fourth issue, the jury’s answer to which established that he was the father of the child Rhonda, born 7 January 1966. If the fourth issue be answered Yes, the fifth must also be answered in the affirmative, since plaintiff admits he has never supported the child and denies his responsibility.
The usually accepted average period of pregnancy is 280 days. 2 Taylor, Principles and Practice of Medical Jurisprudence 24 (12th Ed. 1965). “[I]n the absence of evidence to the contrary, the term of pregnancy is presumed to be ten lunar months or 280 days. . . . Whether, according to the laws of nature, the term of pregnancy may extend 322 days or more from the moment of conception, is a proper subject of testimony by qualified medical experts.”
Byerly v. Tolbert,
When a child is born in wedlock, the law presumes it to be legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife.
State v. McDowell,
This record is devoid of any evidence that defendant has committed any act of adultery. At the conclusion of defendant’s evidence, however, counsel for plaintiff informed the court that he “would like to offer some additional evidence on the question, of paternity.” The court declined to permit plaintiff to offer such evidence, and plaintiff assigns this ruling as error. The record does not disclose the identity of the proposed witnesses or what their testimony would have been. It cannot be determined, therefore, whether either the witness or his testimony would have been competent. “Failure to show what the witness would have answered renders the ruling nonprejudicial.”
Westmoreland v. R. R.,
To entitle plaintiff to an absolute divorce, he was required to prove that he and defendant had lived continuously separate and apart for at least one year next preceding the institution of this action on 21 March 1966. On this record, the law presumes that plaintiff is the father of Rhonda and that she was conceived on or about 3 April 1965, a time within the year next preceding the institution of *198 the action. Yet the court peremptorily instructed the jury that if they found the facts to be as all the evidence tended to show, they would answer the third issue Yes. As plaintiff correctly points out, “We have the anomalous situation of a jury determination that the parties have lived continuously separate and apart from each other during the period of gestation but that one of the parties is the father of the child of the other party.” On this record, the third and fourth issues may not each be answered Yes, and the court should have instructed the jury that if they answered the third issue Yes, they would answer the fourth issue No.
Fundamental error pervaded the trial of this case. Since the judgments dismissing defendant’s cross action and awarding plaintiff an absolute divorce must be set aside, justice requires that the adjudication of paternity likewise be vacated and that a trial de novo be had on all issues raised by the pleadings. Defendant’s pleadings are minimal. If so advised, she may move for permission to re-plead.
The decision is this: On defendant’s appeal, the judgment dismissing the cross action is reversed; the decree of absolute divorce is vacated and a new trial ordered. On plaintiff’s appeal, the adjudication of paternity is set aside and a new trial ordered.
Plaintiff’s appeal,
New .trial.
Defendant’s appeal,
Reversed and remanded.