{
  "id": 8553734,
  "name": "JAMES A. SMITH v. DORIS C. SMITH",
  "name_abbreviation": "Smith v. Smith",
  "decision_date": "1979-07-03",
  "docket_number": "No. 7821DC1017",
  "first_page": "246",
  "last_page": "248",
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "210 S.E. 2d 190",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
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      "category": "reporters:state",
      "reporter": "N.C.",
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        8565164
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      "year": 1974,
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          "page": "262"
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  "last_updated": "2023-07-14T15:00:09.609845+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges PARKER and Martin (Harry C.) concur."
    ],
    "parties": [
      "JAMES A. SMITH v. DORIS C. SMITH"
    ],
    "opinions": [
      {
        "text": "ERWIN, Judge.\nDefendant contends that the trial court committed error in granting plaintiff an absolute divorce when the plaintiff\u2019s evidence and the defendant\u2019s 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.\nDefendant 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\u2019s action for absolute divorce.\nG.S. 50-6 provided at the time of trial:\n\u201cDivorce after separation of one year on application of either party. \u2014 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.\u201d (Emphasis added.)\nThe 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 \u201c[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. . . .\u201d This sentence was rewritten by the General Assembly in 1978 to read: \u201cA 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\u2019s obtaining a divorce under this section.\u201d To us, it is clear that the General Assembly has totally eliminated the defendant\u2019s bar to plaintiff\u2019s 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 \u201cthe affirmative defenses of abandonment and adultery can defeat an action for divorce based on separation.\u201d\nWe hold that recrimination does not constitute a bar to plaintiff\u2019s action for divorce. The results would be the same had the answer been filed and the evidence offered admitted on the merits.\nJudgment affirmed.\nJudges PARKER and Martin (Harry C.) concur.",
        "type": "majority",
        "author": "ERWIN, Judge."
      }
    ],
    "attorneys": [
      "Westmoreland & Sawyer, by Rebecca L. Connelly and Barbara C. Westmoreland, for plaintiff appellee.",
      "Kennedy, Kennedy, Kennedy & Kennedy, by Annie Brown Kennedy, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JAMES A. SMITH v. DORIS C. SMITH\nNo. 7821DC1017\n(Filed 3 July 1979)\nDivorce and Alimony \u00a7 13\u2014 divorce based on year\u2019s separation \u2014 recrimination no defense\nRecrimination did not constitute a bar to plaintiffs action for divorce based on one year\u2019s separation. G.S. 50-6.\nAPPEAL by defendant from Harrill, Judge. Judgment entered 6 June 1978 and amended judgment entered 17 August 1978 in District Court, FORSYTH County. Heard in the Court of Appeals 25 June 1979.\nPlaintiff filed his complaint on 4 January 1978 seeking an absolute divorce from defendant on the ground of one year\u2019s separation. Defendant did not file a pleading.\nAt the trial, plaintiff testified that he had lived in North Carolina for more than six months prior to filing his complaint; that he was married to defendant on 2 September 1949 in Dan-ville, Virginia; that the parties separated on 23 March 1973; since July 1974, he had lived continuously separate and apart from his wife; and that six children were born to the marriage, and four of said children are minors.\nAt trial, defendant attempted to introduce evidence of plaintiff\u2019s adultery. The trial court refused to allow the evidence to be introduced as substantive evidence. The evidence tended to show that plaintiff moved out of the home on Easter Monday 1973 and did not tell his children or his wife where he was moving. Sometime later, plaintiff and Frances Rucker came out of an apartment building and got into his car. Plaintiff now lives on Sedgefield Drive in the home of Frances Rucker, who has lived at that house for quite some time. Defendant admitted that she has lived continuously separate and apart from plaintiff and has not resumed the marital relationship since July 1974.\nPlaintiff was granted an absolute divorce from defendant, and she appealed.\nWestmoreland & Sawyer, by Rebecca L. Connelly and Barbara C. Westmoreland, for plaintiff appellee.\nKennedy, Kennedy, Kennedy & Kennedy, by Annie Brown Kennedy, for defendant appellant."
  },
  "file_name": "0246-01",
  "first_page_order": 274,
  "last_page_order": 276
}