44 N.C. App. 46 | N.C. Ct. App. | 1979
Defendant assigns error in the admission of evidence, over objection, that defendant called plaintiff by derogatory names. He argues the evidence was not supported by the pleadings. Rule 8(a) of the N.C. Rules of Civil Procedure requires that a claim for relief contain “[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief . . . .” Plaintiff alleged personal indignities and that “defendant has been cold and unaffectionate toward plaintiff.” This is reasonable notice of the basis of plaintiffs claim. The evidence of name calling conforms to the allegation of coldness, lack of affection and other indignities. See Manning v. Manning, 20 N.C. App. 149, 201 S.E. 2d 46 (1973). Also, the same evidence of name calling was admitted without objection at other points in the trial. Any benefit to the objection elsewhere is, therefore, waived. 1 Stansbury, N.C. Evidence § 30 (Brandis rev. 1973).
Defendant also argues that the trial judge erred by allowing plaintiff to present evidence that defendant spent considerable time with another woman. Plaintiff’s complaint is based on the grounds of indignities, abandonment and adultery. Adultery, however, was not submitted to the jury as an issue in the case. It is, of course, true that in an action for divorce a spouse is not a competent witness to give evidence on the adultery of the other spouse. G.S. 8-56; G.S. 50-10; Wright v. Wright, 281 N.C. 159, 188 S.E. 2d 317 (1972). An examination of the testimony of plaintiff wife does not reveal any incompetent evidence of adultery by defendant husband. In fact where the testimony bordered on circumstantial evidence of adultery, the trial judge either allowed the objection and instructed the jury to disregard the evidence or cautioned plaintiff’s counsel to limit his questioning and not delve into the forbidden topic. The evidence that was admitted to the effect that plaintiff had seen defendant with another woman was admissible for purposes of proving the alleged indignities suffered by her at defendant’s hands. Briggs v. Briggs, 21 N.C. App. 674, 205 S.E. 2d 547 (1974).
Defendant’s final assignment of error raises the issue of whether sufficient findings of fact were made to support the amount of the alimony award. “Alimony shall be in such amount
“(4) Plaintiff is 49 years old, has an 8th grade education, no job training or significant job experience, she has been a housewife throughout the marriage. The parties married one another in 1947, and had four children. All are now legally emancipated.
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(6) Defendant works full time at American Enka where he has a net take-home pay of approximately $140.00 per week. He is able bodied and he has been working at Enka for 24 years.
(7) The plaintiff’s only source of income is to work as a babysitter for her daughter in return for free rent. Plaintiff has expenses for utilities, groceries, and clothing. She is in good health at the present time. She does not own a car nor have a driver’s license.”
These findings and others are sufficient compliance with Eudy v. Eudy, supra. No abuse of discretion has been shown. The judgment is, in all respects, affirmed.
Affirmed.
