38 N.C. App. 364 | N.C. Ct. App. | 1978
The question which defendant contends is raised by this appeal (whether or not a married couple may litigate their differences while living together?) is stated much too broadly, and we will not address all the ramifications of the question as stated. Appropos to the present case the question raised is as follows: may a wife pursue an action for divorce from bed and board and alimony while the husband is staying in the same house with her?
The record on appeal discloses the following: Since 1973 defendant husband has been a resident of Louisville, Kentucky, where he is regularly employed by the Veterans Administration Hospital. Prior to 1973 the parties resided in Swannanoa, Buncombe County, North Carolina, at which time defendant was employed by the Veterans Administration Hospital in Buncombe County. For many years, and down to the time of trial, defendant has been an excessive user of alcohol, and this is the reason plaintiff refused to move to Kentucky with him.
The complaint in this action was filed on 16 August 1976, and defendant’s answer was filed 30 September 1976. Thereafter defendant stayed in the parties’ home in Swannanoa for three or four days in November 1976, for about five days in February 1977, and was staying in the Swannanoa home during the time of the hearing in the trial court in May 1977.
Defendant’s reliance upon the holding in In re Estate of Adamee, 291 N.C. 386, 230 S.E. 2d 541 (1976) is clearly misplaced. In Adamee the plaintiff was seeking an absolute divorce on the grounds of separation. In the present case the plaintiff seeks only a divorce from bed and board and alimony. Indeed such an action may be the only method by which the injured spouse can obtain a writ for exclusive possession of the home so as to keep the offending spouse from continuing to stay in the home.
In the present case the trial judge concluded from adequate facts found from competent evidence, inter alia:
“The defendant has constructively abandoned the plaintiff as a result of his failure to provide reasonable and adequate support to the plaintiff.”
“The defendant is an excessive user of alcohol so as to render the condition of the plaintiff intolerable and her life burdensome as provided in North Carolina General Statutes 50-7(5) and 50-16.2(9).”
Based upon his conclusions the trial judge awarded alimony to plaintiff and also awarded to plaintiff the sole possession of the home and furnishings.
There is no requirement for a separation of the parties in the sense of one moving out of the home before an action can be instituted and prosecuted under G.S. 50-7 for divorce from bed and board. “A divorce from bed and board is nothing more than a judicial separation; that is, an authorized separation of the hus
Affirmed.
