{ "id": 8554414, "name": "MARY PERGERSON EARLES v. RALPH W. EARLES", "name_abbreviation": "Earles v. Earles", "decision_date": "1975-07-16", "docket_number": "No. 7517DC251", "first_page": "559", "last_page": "565", "citations": [ { "type": "official", "cite": "26 N.C. App. 559" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "176 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551347 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0438-01" ] }, { "cite": "167 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "275 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558797 ], "year": 1969, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0370-01" ] }, { "cite": "211 S.E. 2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554317 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0680-01" ] } ], "analysis": { "cardinality": 561, "char_count": 13935, "ocr_confidence": 0.59, "pagerank": { "raw": 3.4215140151584055e-07, "percentile": 0.8786492957697534 }, "sha256": "8d0dbf04ea872414b9391973b77850c64842418db4c84c84b8c5fd56299f8e9b", "simhash": "1:02e5c66470aeff28", "word_count": 2313 }, "last_updated": "2023-07-14T16:59:13.418266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Hedrick concur." ], "parties": [ "MARY PERGERSON EARLES v. RALPH W. EARLES" ], "opinions": [ { "text": "PARKER, Judge.\nIn his first and eighth assignments of error defendant argues that \u201cif the court sustains Assignment of Error Nos. 4 and 5, there is insufficient competent \u00bfnd admissible evidence to sustain the judgment in this matt\u00e9r.\u201d We disagree. At th\u00e9 trial there was evidence that the parties moved into a motel room; that the defendant subsequently moved out; that after being released from the hospit\u00e1l the plaintiff asked him to return ; and that the defendant refused, and never has returned to the plaintiff. As there was sufficient evidence to go to the jury on the issue of abandonment, defendant\u2019s motions for a directed verdict were properly denied; These assignments of error are overruled.\nDefendant next asserts that it was. error, for . the . trial court to submit to the jury the issues of whether the plaintiff was the \u201cdependent spouse\u201d and the defendant' the \u201csupporting spouse.\u201d We find merit in this contention. In Bennett v. Bennett, 24 N.C. App. 680, 211 S.E. 2d 835 (1975), we held that the issues of who is a \u201cdependent spouse\u201d and who is a \u201csupporting spouse\u201d are mixed questions of law and fact which can be best determined by the trial judge when he sets the amount of permanent alimony. Since these issues should have been decided by the trial court and not the jury, the verdict of the jury on these issues should be stricken from the record. A determination on these issues will have to be made by the trial judge.\nIn his third assignment of error defendant contends that (1) he should have been, permitted to amend his answer to allege condonation; and (2) the jury should have been instructed on the issue of condonation. We find this assignment of error without merit. At the trial there was no evidence that the plaintiff condoned the defendant\u2019s abandonment; we therefore conclude the trial court properly refused to give instructions on this issue. Furthermore, the only evidence of condonation offered by defendant tended to show that the plaintiff condoned the indignities to which defendant subjected her. Since the issue of indignities was not submitted to the jury, any error in the trial court\u2019s refusal to allow the defendant to amend his answer to allege condonation was harmless. This assignment of error is overruled.\nDefendant next argues that the plaintiff should not have been allowed to testify regarding defendant\u2019s statements that he loved another woman and would continue to see her. Defendant maintains that such evidence was inadmissible under G.S. 8-56, which provides in part that \u201c [n] othing herein shall render any husband or wife, competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery\u201d and under G.S. 50-10 which provides in part that \u201c[o]n such trial neither the husband nor wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact.\u201d We disagree. The factual situation of this case clearly precludes the defendant from invoking the prohibitions contained in G.S. 8-56 since this was not an \u201caction or proceeding in consequence of adultery,\u201d or an \u201caction or proceeding for divorce on account of adultery.\u201d Moreover, while our Supreme Court has held that the provisions of G.S. 50-10 are not limited to actions in consequence of adultery or actions for divorce on account of adultery, but apply in \u201call divorce actions, including actions for alimony without divorce,\u201d Hicks v. Hicks, 275 N.C. 370, 378, 167 S.E. 2d 761, 766 (1969), here there was no accusation or attempt by the plaintiff to. prove adultery. Adultery has been defined as \u201cvoluntary sexual intercourse of a married person with one other than his or her spouse.\u201d 1 Lee, N. C. Family Law, \u00a7 65, p. 254. Plaintiff\u2019s testimony tended to show only that the defendant saw another woman and that he loved her, not that he had sexual intercourse with her.' The case of Phillips v. Phillips, 9 N.C. App. 438, 176 S.E. 2d 379 (1970), relied on heavily by the defendant is distinguishable from the case at bar. In Phillips we held that a husband should not have been permitted to testify that he caught his wife in the woods with another man. This testimony clearly implied an act of sexual intercourse and tended to show adultery; it thus differs from the plaintiff\u2019s testimony in this case. We also note that even if the plaintiff\u2019s testimony should have been excluded, which we do not concede, this error was harmless because this testimony related only to the issue of indignities, which was not submitted to the jury. For the foregoing reasons, this assignment of error is overruled.\nAt the trial, counsel for the plaintiff cross-examined the defendant concerning certain personal letters he wrote to the plaintiff in 1971 and 1972. In his fifth assignment of error defendant contends that these letters were privileged confidential communications between husband and wife. He also maintains that his oral statements to the plaintiff that he loved another woman and would continue to see her were privileged. These contentions are without merit. We note that the defendant objected only to certain portions of the letters, while allowing other similar portions to be admitted without objection. At no time did counsel for the defendant make a specific objection to the admission of this evidence. Furthermore, it seems clear that the oral statements made by the defendant to the plaintiff were not intended to be confidential. The record shows that the defendant made similar statements to several other persons. Finally, as we have already pointed out, the admission of defendant\u2019s letters and oral statements to the plaintiff could not have been prejudicial, even if erroneous, since this evidence related to the issue of indignities, which was not submitted to the jury.\nIn his sixth and seventh assignments of error defendant argues that in its instructions to the jury the trial court failed to give a clear statement of the facts and failed adequately to explain the law applicable to the facts. We have examined the charge as a whole, and conclude the trial court adequately stated the facts and the applicable law.\nThe judgment entered must be modified by deleting therefrom the third issue and the answer thereto. This issue must be left for determination by the court. In all other respects the judgment is affirmed.\nModified and affirmed.\nChief Judge Brock and Judge Hedrick concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Gwyn, Gwyn and Morgan, by Melzer A. Morgan, Jr., for plaintiff appellee.", "Bethea, Robinson, Moore and Sands, by Alexander P. Sands, for defendant appellant." ], "corrections": "", "head_matter": "MARY PERGERSON EARLES v. RALPH W. EARLES\nNo. 7517DC251\n(Filed 16 July 1975)\n1. Divorce and Alimony \u00a7 8\u2014 abandonment \u2014 sufficiency of evidence\nThere was sufficient evidence to go to the jury on the issue of abandonment in this action for divorce from. bed and board where there was evidence tending to show that the parties moved into a motel room, defendant moved out of the room while plaintiff was confined in a mental hospital for a week, after being released from the hospital plaintiff asked defendant to return, and defendant refused and has never returned to the plaintiff.\n2. Divorce and Alimony \u00a7 17\u2014 dependent and supporting spouses \u2014 determination by court\nIn an action to obtain alimony upon divorce from bed and board, \u25a0the trial court erred in submitting to the jury issues of whether plaintiff was the \u201cdependent spouse\u201d and defendant the \u201csupporting spouse\u201d since these issues should be determined by the trial court and not the jury.\n3. Divorce and Alimony \u00a7 4\u2014 failure to instruct on condonation \u2014 denial of amendment to allege condonation\n: In this action for divorce from bed and board wherein only the issue of abandonment was submitted to the jury, the trial court did \u2019 not err in failing to instruct the jury on condonation where there was no evidence that plaintiff condoned defendant\u2019s abandonment; furthermore, any error in the court\u2019s refusal to allow defendant to amend his answer to allege condonation was harmless since the only evidence of condonation related to condonation of indignities and the issue of indignities was not submitted to the jury.\n4. Divorce and Alimony \u00a7 14; Evidence \u00a7 12\u2014 divorce action \u2014 wife\u2019s testimony against husband \u2014 statements that husband loved another . woman\nIn this action for divorce from bed and board based on abandon'ment, testimony by plaintiff regarding defendant\u2019s statements that he loved another woman and would continue to see her was not rendered incompetent by G.S. 8-56 or G.S. 50-10 since there was no accusation or attempt by plaintiff to prove adultery and the testimony did not tend to show adultery.\n5. Evidence \u00a7 12\u2014 letters and statements of husband to wife \u2014 no confidential communications\nIn an action for divorce from bed and board, letters written by defendant to plaintiff and defendant\u2019s oral statements to plaintiff that he loved another woman and would continue to see her were not inadmissible as privileged confidential communications between husband and wife where defendant made no specific objection to the admission of statements in the letters and it is clear that the oral statements were not intended to be confidential since defendant made similar statements to several other persons; furthermore, the admission of the letters and oral statements was not prejudicial since they related to the issue of indignities and such issue was not submitted to the jury.\nAppeal by defendant from Clark, Judge. Judgment entered 17 .December 1974 in District Court, Rockingham County. Heard in the Court of Appeals 28 May 1975.\nPlaintiff instituted this action against' her husband on 25 August 1972, seeking permanent alimony, child custody and support, counsel fees and a divorce from bed and board. In her complaint plaintiff alleged abandonment by her husband and \u201csuch indignities ... as to render the plaintiff\u2019s condition intolerable.\u201d Defendant averred in his answer that plaintiff had abandoned him.\nAt the trial plaintiff offered evidence tending to show that she and the defendant were married in 1953 and have three children; that throughout the marriage the defendant has been in the Air Force, and until May 1971, plaintiff and the children travelled with him from one assignment to another; that in May 1971, defendant was scheduled to retire from the Air Force in two years and he and the plaintiff purchased a home in Ruffin, North Carolina, and decided that the plaintiff and the children would live in Ruffin for the next two years, rather than continuing to travel with the defendant. Other evidence offered by the plaintiff tended to show that in March 1972, while he was stationed at Barksdale Air Force Base in Louisiana, the defendant telephoned plaintiff and told her that although he still cared for her, he had fallen in love with another woman; that from March 1972, until August 1972, defendant continued to tell plaintiff that he loved her but he also was in love with another woman; that as a result, plaintiff became \u201cvery upset and nervous\u201d and on one occasion she tried to commit suicide by taking an overdose of sleeping pills; that in August 1972, plaintiff and the children went to Louisiana to live with the defendant, and the family moved into two rooms at a motel which the defendant had obtained; that on the day of their arrival the plaintiff and defendant had a discussion about their marriage and the defendant stated that even if they stayed \u201che would continue to see the other person\u201d; and that plaintiff then took another overdose of sleeping pills and was \u201csent to a mental hospital\u201d where she stayed \u201cfor about a week.\u201d Plaintiff offered other evidence tending to show that she discovered that the defendant had moved out of the motel room when she was released from the hospital, and that she found him and asked him to return but he refused.\nDefendant testified that his relationship with the plaintiff had been difficult since shortly after their marriage; that their sex life was \u201cvaried and quite infrequent\u201d and the \u201cmarriage was kept together because of the smaller children.\u201d According to the defendant, in July 1972, he and the plaintiff agreed to settle their differences and attempt a reconciliation. Accordingly, the family came to Louisiana, where he was stationed. Shortly after her arrival, however, the plaintiff tried to commit suicide and was hospitalized. When she was released from the hospital for a day to go with the defendant to visit some friends in Long View, Texas, plaintiff mentioned the possibility of a separation. Defendant testified that he moved out of their motel room because he had been ordered to prepare for an assignment in Taiwan; that he intended to return and did not leave with the intention of abandoning the plaintiff. When the plaintiff was released from the hospital the defendant \u201ctold her that the apartment was still there if they wanted to live there\u201d but the plaintiff insisted on returning to Ruffin. At no time did he tell her to go back to North Carolina.\nThe following three issues were submitted to the jury, and answered in favor of the plaintiff:\n\u201c1. Was the Plaintiff a citizen and resident of North Carolina at least 6 months immediately preceding the filing of this action ?\nAnswer Yes.\n2. Did the defendant, Ralph W. Earles, abandon the plaintiff, Mary Pergerson Earles, on or about August 8, 1972, as alleged in the complaint?\nAnswer Yes.\n3. If so, was the plaintiff a dependent spouse and the defendant a supporting spouse, as alleged in the complaint?\nAnswer Yes.\u201d\nFrom the entry of judgment granting plaintiff a divorce from bed and board, with the amount of permanent alimony and attorney fees postponed for later determination, defendant appealed.\nAdditional facts necessary for decision are set forth in the opinion.\nGwyn, Gwyn and Morgan, by Melzer A. Morgan, Jr., for plaintiff appellee.\nBethea, Robinson, Moore and Sands, by Alexander P. Sands, for defendant appellant." }, "file_name": "0559-01", "first_page_order": 587, "last_page_order": 593 }