Defendant’s motion to dismiss should have been allowed because thé complaint fails to state a claim upon which relief can be granted.
Where, as here, husband and wife are living together, the children being in their joint custody and being adequately supported by the supporting spouse, in the absence of allegations that would support an award of alimony or divorce, one spouse may not maintain an action to evict the other, get sole custody of the children and obtain an order for child support.
Even if the wife and children had been living separate from the husband and there was a justiciable controversy as to custody and support, we have not been referred to any authority that would authorize the judge to evict defendant from his home and assign it to his wife for her use and that of the children, in the absence of allegations and proof of matters that would also support an award of alimony or divorce. The pertinent statute concerning the payment of child support is as follows:
Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in real property, as the court may order. In every case in which payment for the support of á minor child is ordered and alimony or alimony pendente lite is also ordered, the order shall separately state and identify each allowance.
G.S. 50-13.4(e) (emphasis added).
Where, however, an order for alimony is authorized, the following statute controls:
Alimony or alimony pendente lite shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property or any interest therein, or a security interest in or possession of real property, as the court may order. In every case in which either alimony or alimony pendente lite is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.
Even if the pleadings should be said to be amended to conform to the evidence, plaintiff has still failed to make out a claim against defendant. Plaintiff testified in her own behalf and called defendant as her own witness. No other evidence was offered except an affidavit as to plaintiff’s needs which she admitted was so excessive as to be “silly.” All of the evidence indicates that the children are happy and well adjusted in their home and community. They appear to lead active and wholesome lives. Both parents can obviously take pride in all of them. Plaintiff testified that she has a Bachelor of Science degree in home economics but, other than teaching school for a few months and working as a secretary for a few months, she has never worked outside the home. She has, from time to time, taught piano in her home particularly when she was instructing one of her own children in that art. Recently, she has invested in a diet counselling franchise. Clients come into the family home for a few hours in the morning. For the most part of the last eighteen years, however, she has spent her time carrying out the usual responsibilities of a mother and wife who does not have to work in outside employment. At the hearing, plaintiff related her activities in considerable detail. They add up, however, to the normal activities of a good homemaker. She ran the household, and ran it well, while her husband developed a career to obtain, among other things, the financial resources to provide his family with a standard of living far above the average.
Page after page of the record is filled with inadmissible speculation and hearsay that was apparently admitted without objection. Most of it is devoted to plaintiff’s attempts to articulate rather amateurish and abstract notions of faulty interpersonal relationships and behavioral patterns - a field best left to those physicians trained in psychiatry who, notwithstanding their scientific knowledge, find much about which they disagree. This is but another field where a little learning often does more harm than good.
A commonsense appraisal of plaintiff’s case is as follows. After 18 years, she has tired of her marriage to defendant and, in her words, “wants out.” She admits that, although she does not dislike her husband, she does not love him and says that she does not know when she last loved him. She had been trying to get him to move out of his home for a long time before she started this suit. She admits that “[t]he children all have a great deal of affection for their father. In fact,
In summary, plaintiff, without cause or excuse, wants out of the marriage but not out of the marital home. The law cannot require her to live with her husband, but it will not allow her to evict him. Plaintiff’s actions tend to amount to constructive abandonment of defendant and might well entitle him to a divorce from bed and board.
We have decided this case on grounds that were not bases of assignments of error or suggested in defendant’s brief as required by the Rules of Appellate Procedure. We do this within the clear residual power of an appellate court, as well as that recited in App. R. 2, in order to prevent a manifest injustice to a party.
The order from which defendant appealed is reversed, and the case is remanded for an order dismissing the action.
Reversed and Remanded.