Taylor v. . Taylor
33 S.E.2d 492
N.C.
1945
Check Treatment
*82 Stacy, C. J.

The complaint alleges, and there is evidence tending to show, that plaintiff and defendant, who are husband and wife, “have lived separate and apart for two years” next immediately preceding the institution of the action, and that plaintiff “has resided in the State for a period of six months.” G. S., 50-6. Nothing else appearing, the establishment of these allegations by proof would entitle the plaintiff to a divorce. Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549. The statute so provides. Byers v. Byers, 223 N. C., 85, 25 S. E. (2d), 466.

The language of the enactment is, that marriages may be dissolved and divorces granted “on application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce has resided in the State for a period of six months.” G. S., 50-6; Campbell v. Campbell, 207 N. C., 859, 176 S. E., 250.

It is also provided that when there is a minor child or children of the marriage, the name and age of such child or children shall be set forth in the complaint; and, if there be no minor child, the complaint shall so state. G. S., 50-13.

The separation contemplated by the statute is apparently unrestricted. Lockhart v. Lockhart, 223 N. C., 559, 27 S. E. (2d), 444; Long v. Long, 206 N. C., 706, 175 S. E., 85. It is unnecessary to set out in the complaint the cause for the separation, or to allege that it was without fault on the part of the plaintiff, or to aver that it was by mutual agreement of the parties. Kinney v. Kinney, 149 N. C., 321, 63 S. E., 97; Byers v. Byers, 222 N. C., 298, 22 S. E. (2d), 902. “The plaintiff is not bound to anticipate and negative in advance all grounds of defense to the action he brings, and petitions for divorce do not constitute an exception to the general rule.” Steel v. Steel, 104 N. C., 631, 10 S. E., 707. A separation by act of the parties, or one of them, or under order of court a mensa et ihoro, suffices to meet the terms of the statute. Lockhart v. Lockhart, supra. See Dudley v. Dudley, post, 83. It would not include an involuntary living apart, where there had been no previous separation, such as might arise from the incarceration or insanity of one of the parties. Sitterson v. Sitterson, 191 N. C., 319, 131 S. E., 641; Lee v. Lee, 182 N. C., 61, 108 S. E., 352.

Of course, the plaintiff may particularize as to the character of the separation by alleging that it was by mutual consent, abandonment, etc., in which event, if material to the cause of action, the burden would rest with the plaintiff to prove the case secundum allegata. Williams v. Williams, 224 N. C., 91, 29 S. E. (2d), 39; McQueen v. McQueen, 82 N. C., 471.

It is further provided by statute that the material facts in every complaint asking for a divorce shall be deemed to be denied by the de *83 fendant, whether actually denied by pleading or not, and no judgment is to be given in favor of the plaintiff until such facts are found by a jury. G. S., 50-10; Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7; Moody v. Moody, post, 89.

In addition to the denial of the allegations of the complaint, the defendant alleges by way of “further answer and defense” that whatever estrangement exists between the parties was occasioned by the plaintiff’s own wrongful conduct and willful abandonment of the defendant. Hyder v. Hyder, 215 N. C., 239, 1 S. E. (2d), 540; Page v. Page, 161 N. C., 170, 76 S. E., 619. The defendant also pleads recrimination. Either defense, if established, would defeat the plaintiff’s action for divorce. Byers v. Byers, 223 N. C., 85, 25 S. E. (2d), 466; Brown v. Brown, 213 N. C., 347, 196 S. E., 333; Pharr v. Pharr, 223 N. C., 115, 25 S. E. (2d), 471; House v. House, 131 N. C., 141, 42 S. E., 546. The burden rests with the defendant, however, to establish the defense or defenses as set up in the answer and relied upon. Lockhart v. Lockhart, 223 N. C., 123, 25 S. E. (2d), 465. They are not like pleas of the statute of limitations or of the statute of frauds (McIntosh on Procedure, 486), requiring the plaintiff to overcome them, but are in the nature of affirmative defenses requiring proof to support them. Kinney v. Kinney, supra; Speas v. Bank, 188 N. C., 524, 125 S. E., 398; McIntosh on Procedure, 476. And as they do not amount to a cross cause, they are deemed controverted by the adverse party. G. S., 1-159; Askew v. Koonce, 118 N. C., 526, 24 S. E., 218; McIntosh on Procedure, 509.

On the hearing, both the plaintiff and the defendant offered evidence in support of their respective allegations. The facts are in dispute. The case is one for the jury. There was error in sustaining the defendant’s demurrer to the evidence.

Reversed.