Smith v. Smith, No. 7821DC1017

No. 7821DC1017 | N.C. Ct. App. | Jul 3, 1979

ERWIN, Judge.

Defendant contends that the trial court committed error in granting plaintiff an absolute divorce when the plaintiff’s evidence and the defendant’s evidence showed that the plaintiff was living in an adulterous relationship at the time of trial and had continuously lived in adultery since the separation of the parties. We find no error and affirm the judgment entered by the trial court.

Defendant contends that the central issue presented on this appeal is whether it was proper for the trial court to exclude all evidence tending to establish an adulterous relationship on the part of the plaintiff, because the defendant failed to file answer. We do not agree. To us, the central issue is whether recrimination is a defense at all to the plaintiff’s action for absolute divorce.

G.S. 50-6 provided at the time of trial:

“Divorce after separation of one year on application of either party. — Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. This section shall be in addition to other acts and not construed as repealing other laws on the subject of divorce. A plea of res judicata or of recrimination with respect to any provision of G.S. 50-5 shall not be a bar to either party obtaining a divorce on this ground: Provided that no final judgment of divorce shall be rendered under this section until the court determines that there are no claims for support or alimony between the parties or that all such claims have been fully and finally adjudicated.” (Emphasis added.)

The change in the above statute became effective on 1 .August 1977, a few months before the complaint was filed in this action. The statute is clear that “[a] plea of res judicata or of recrimination with respect to any provision of G.S. 50-5 shall not be a bar to either party obtaining a divorce on this ground. . . .” This sentence was rewritten by the General Assembly in 1978 to read: “A plea of res judicata or of recrimination, with respect to any provision of G.S. 50-5 or of 50-7, shall not be a bar to either party’s obtaining a divorce under this section.” To us, it is clear that the General Assembly has totally eliminated the defendant’s bar to plaintiff’s divorce action. The statute was changed to avoid the decision of our Supreme Court in Harrington v. Harrington, 286 N.C. 260, 262, 210 S.E. 2d 190, 191 (1974), wherein the Court held that “the affirmative defenses of abandonment and adultery can defeat an action for divorce based on separation.”

We hold that recrimination does not constitute a bar to plaintiff’s action for divorce. The results would be the same had the answer been filed and the evidence offered admitted on the merits.

Judgment affirmed.

Judges PARKER and Martin (Harry C.) concur.