37 S.E.2d 904 | N.C. | 1946
Civil action for divorce heard on demurrer to the further defense and cross action pleaded in defendant's answer.
This case was here on former appeal. Pearce v. Pearce,
The plaintiff demurred for that the facts alleged, in view of defendant's admissions, are not sufficient to constitute (1) a cross action or (2) a valid defense. The demurrer was overruled and plaintiff appealed.
The further defense and the cross action or actions upon which defendant apparently relies are not separately stated as required by statute and by the Rules of Practice adopted by this Court. G.S., 1-138, Rule 20 (2),
Even so, on demurrer the defendant is entitled to have her pleadings liberally construed. Sparrow v. Morrell Co.,
The defendant denies that there has been a voluntary separation and alleges that plaintiff, since June, 1941, has maintained an apartment in Richmond for another woman with whom he has lived in illicit relations; that he has repeatedly committed acts of adultery with this woman; that since said time he has become cold and indifferent toward defendant, has excluded her from his bedroom, and has continuously and repeatedly told her that he did not give a damn about her, did not want her, and that he never expected to live with her as husband and wife again; that he has since that time refused to live with her as husband and wife; that she has repeatedly, for the sake of her children, attempted to persuade plaintiff to cease his misconduct and live the normal, peaceful life they had lived before he began his illicit relations with the woman in Richmond; that notwithstanding such attempts on her part the plaintiff has persisted in his repeated insults and humiliation of her and, finally, shortly before 19 August, 1942, ordered defendant to leave his home; that thereupon under his persuasion she signed a separation agreement in writing in which the plaintiff agreed to pay her $100 per month in lieu of alimony "and thus the defendant wife separated herself from the plaintiff"; that said agreement was void in its inception for the reason that it was not executed in the manner required by G.S.,
She prays (1) a decree of divorce a mensa et thoro, (2) an order for alimony pendente lite and counsel fees, (3) an order for alimony, and (4) for general relief.
It must be noted at the threshold of this case that the asserted written agreement of separation is void ab initio. G.S.,
Defendant alleges that plaintiff cohabited and committed adultery with another woman and that these illicit relations continued over a period of time notwithstanding the protestations and pleas of defendant. Thus she states a cause of action for absolute divorce. G.S.,
It is likewise alleged that plaintiff, to the great humiliation of defendant, has been living in adultery, that he has repeatedly avowed his loss of affection and his desire to be rid of defendant, ejected her from his bed, and finally ordered her from his home, stating that he never intended to live with her again as husband and wife.
Such flagrant infidelity, humiliation and insult, repeated and persisted in, might well send the broken heart of a refined and sensitive woman to the grave. Allegation thereof sufficiently states a cause of action under G.S.,
As the defendant has pleaded two causes of action for divorce, it follows that she has interposed a plea of recrimination in defense. Taylorv. Taylor,
The judgment overruling the demurrer is
Affirmed.