46 N.C. App. 701 | N.C. Ct. App. | 1980
Lead Opinion
Plaintiff-wife’s first assignment of error is directed to the trial court’s overruling of her objections to certain portions of her husband’s testimony in which he referred to her ownership of stocks. While defendant was testifying on direct examination concerning his wife’s demands that they purchase beach property, the following took place:
Q. What would she say?
A. She would like for us to buy the property. And, one of my responses to that was, “Well, why don’t you sell some of your stock and let’s buy the property?”
MR. WALKER: I OBJECT to that.
Court: Overruled.
A. And, she said, “Well, I’m not going to sell any of my stock.” So, consequently I said, “Well, we can’t afford it.”
At one other point in his testimony, defendant again in an unresponsive answer referred to his wife’s ownership of stocks, to which plaintiff’s counsel’s objection was again overruled.
We note at the outset that plaintiff’s counsel made no motion to strike the answers to which he objected. The general rule
In her second and third assignments of error, plaintiff challenges the trial court’s exclusion of evidence concerning defendant’s relationships with two women. Outside of the presence of the jury, defendant testified for the record that some eight or ten years before he separated from plaintiff he stayed away from his family for about three months. During this period he sold some stocks to purchase an automobile for a woman he met in Charlotte. At the end of that period the parties decided “to get back together and try it again.” Both the remoteness in time of this incident and the evidence of plaintiff-wife’s subsequent condonation render this evidence irrelevant and incompetent to prove defendant’s unlawful abandonment of plaintiff on 18 June 1973. Its admission would have unduly prejudiced defendant and introduced issues of adultery extraneous to the suit. For similar reasons, defendant’s testimony on voir dire as to his relationship with a different woman one and one-half years after his separation from his wife was properly excluded. Although defendant testified that he was acquainted with the woman, who had formerly worked for his company and who resided in the apartment complex to which he moved upon his separation, there is no indication of any involvement with her during any period close in time to the separation. Plaintiff’s second and third assignments of error are overruled.
Plaintiff’s final assignments of error are directed to the court’s instructions to the jury. She contends first that the trial judge failed to declare and explain the law arising on the evidence as required by G.S. 1A-1, Rule 51(a). We find no error. After summarizing the evidence of the parties, explaining the ap
Plaintiff-wife’s final contention is that the trial court’s instructions erroneously placed upon her the inordinate burden of proving that at the time of defendant-husband’s withdrawal from the home he could have continued in the marriage with safety, health and self-respect. “One spouse abandons the other, within the meaning of [G.S. 50-16.4(4)], where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it.” Panhorst v. Panhorst, supra at 670-671, 178 S.E. 2d at 392. Where a spouse seeks to recover alimony on the grounds of abandonment, that spouse has the burden of proving each and every element of abandonment, including the absence of justification. Murray v. Murray, 37 N.C. App. 406, 246 S.E. 2d 52 (1978), affirmed, 296 N.C. 405, 250 S.E. 2d 276 (1979). In his final mandate, the trial judge instructed the jury as follows:
So, Members of the jury, if you are satisfied from the evidence and by its greater weight, the burden of proof being upon the plaintiff to so satisfy you that the defendant wilfully separated himself from the plaintiff; and, that such separation was without the consent of the plaintiff; and, that such separation was without the intent of returning; and, that this*706 separation was without adequate justification or provocation, then it will be your duty to answer that issue, “Yes,” in favor of the plaintiff.
On the other hand, Members of the jury, if, considering all of the evidence, the plaintiff has failed to prove to you, that is to satisfy you by the greater weight of the evidence — from the greater weight of the evidence, then it would be your duty to answer the issue, “No,” in favor of the defendant.
Although plaintiff contends that these instructions placed upon her the burden of proving that her husband could have continued the marriage with health, safety, and self-respect, a fair reading of the charge discloses that the trial court placed upon her only the burden of proving that her husband’s separation was without adequate justification or provocation on her part. Thus, her burden of proof was not to negate every possible justification for defendant-husband’s leaving, but rather to prove only the absence of conduct on her part which rendered it impossible for him to continue in the marriage. The allocation of the burden of proof in a case such as this may not appear entirely logical, in that it in effect requires the plaintiff to prove a negative state of facts. There are, however, strong policy considerations which support such an allocation. These policy considerations were noted by our Supreme Court in Allen v. Allen, 244 N.C. 446, 94 S.E. 2d 325 (1956). In that case the court held that a plaintiff alleging indignities to the person as grounds for alimony was required to bear the burden of proving lack of provocation, stating:
“[T]he State and society and the children have an interest in the marriage status, and in preserving the family when that can be done without undue hardship. To require the complaining party to show lack of provocation gives the Court a chance to see that the assistance of the law in breaking up the family is used for the benefit of the injured party only”.
244 N.C. at 450-451, 94 S.E. 2d at 329.
In the present case, the trial court properly instructed the jury as to the burden of proof, and upon these instructions the jury found that plaintiff-wife had failed to meet her burden.
For the reasons stated, we find
Dissenting Opinion
dissenting.
I dissent from the majority because I do not believe there was sufficient evidence of justification for the defendant to leave his wife to be considered by the jury. It appears to me that under all the evidence, the defendant could have continued the marriage without endangering his health, safety and self-respect. Caddell v. Caddell, 236 N.C. 686, 73 S.E. 2d 923 (1952). Since I do not believe there was evidence of justification, I do not believe the plaintiff should have been required to prove there was not justification.
