{
  "id": 8555265,
  "name": "GLADYS MARIE GERRINGER v. OTIS JOHN CALVIN GERRINGER",
  "name_abbreviation": "Gerringer v. Gerringer",
  "decision_date": "1979-08-07",
  "docket_number": "No. 7818DC784",
  "first_page": "580",
  "last_page": "581",
  "citations": [
    {
      "type": "official",
      "cite": "42 N.C. App. 580"
    }
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  "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": "224 S.E. 2d 284",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1976,
      "opinion_index": 0
    },
    {
      "cite": "29 N.C. App. 348",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555779
      ],
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/29/0348-01"
      ]
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  "last_updated": "2023-07-14T15:00:09.609845+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges HEDRICK and Webb concur."
    ],
    "parties": [
      "GLADYS MARIE GERRINGER v. OTIS JOHN CALVIN GERRINGER"
    ],
    "opinions": [
      {
        "text": "MORRIS, Chief Judge.\nDefendant appeals assigning error to the order of the district court granting plaintiff a decree of absolute divorce pursuant to G.S. 50-6. Plaintiff filed her action 22 March 1978 alleging that she and defendant were married 7 June 1952 in South Carolina; that they separated and continuously have been living apart since 3 May 1974; that she has been a resident of North Carolina for six months next preceding the commencement of this action; and that there are no pending actions for support or alimony between the parties. Plaintiff prayed only for a decree of absolute divorce. Defendant answered the complaint generally admitting the allegations, but denied that the parties had been separated since 3 May 1974. He pled in bar of this action a prior judgment entered 26 September 1977 in which plaintiff\u2019s action for alimony was dismissed and in which she was found to have abandoned defendant and their two minor children. Defendant also pleads as his third defense plaintiff\u2019s adultery. He moved to dismiss the complaint. Nevertheless, the trial court entered judgment granting plaintiff an absolute divorce without alimony.\nDefendant contends that as a matter of law their period of separation did not begin until the entry of judgment in his wife\u2019s prior action for permanent alimony and alimony pendente lite wherein alimony was denied because of her willful abandonment of defendant. His reasoning is apparently that at the time that prior suit was initiated, G.S. 50-6 permitted a plea of abandonment in bar of divorce because of one year\u2019s separation. Therefore, defendant would argue, our law cannot consider the period of separation prior to entry of that previous judgment 26 September 1977. We find no support for defendant\u2019s strained interpretation of the history of G.S. 50-6. Affecting all cases initiated since 1 August 1977, G.S. 50-6 has eliminated recriminatory defenses by the addition of the following language: \u201cA plea of res judicata or of recrimination, with respect to any provision of G.S. 50-5 [and effective 11 June 1978, also G.S. 50-7] shall not be a bar to either party obtaining a divorce [under G.S. 50-6].\u201d This amended statutory language was in effect when plaintiff initiated her action 22 March 1978. Therefore, abandonment is not available as a defense to an action under G.S. 50-6.\nDefendant contends, nevertheless, that he is not pleading the prior judicial determination of abandonment in bar of the action, but only as a factor in determining the length of separation. We note that a judicially recognized separation may be considered in determining the period of separation. See e.g., Earles v. Earles, 29 N.C. App. 348, 224 S.E. 2d 284 (1976). However, a physical separation of the parties, which occurred 3 May 1974, accompanied by an intention on the part of at least one of the parties to cease the matrimonial obligation, is also a sufficient separation under the statute. See Earles v. Earles, id. There is no question but that such a separation occurred. Merely because abandonment was a defense to this action during a period of the separation does not render that period of separation ineffectual.\nFor the foregoing reasons, the order of the trial court is\nAffirmed.\nJudges HEDRICK and Webb concur.",
        "type": "majority",
        "author": "MORRIS, Chief Judge."
      }
    ],
    "attorneys": [
      "Gerald C. Parker for defendant appellant.",
      "No counsel contra."
    ],
    "corrections": "",
    "head_matter": "GLADYS MARIE GERRINGER v. OTIS JOHN CALVIN GERRINGER\nNo. 7818DC784\n(Filed 7 August 1979)\nDivorce and Alimony \u00a7 13.2\u2014 absolute divorce alter one year\u2019s separation \u2014 effect of abandonment \u2014beginning of separation\nIn plaintiff\u2019s action for absolute divorce on the ground of one year\u2019s separation, there was no merit to defendant\u2019s contention that as a matter of law their period of separation did not begin until the entry of judgment in plaintiff\u2019s prior action for permanent alimony and alimony pendente lite wherein alimony was denied because of plaintiff\u2019s willful abandonment of defendant, since abandonment is not available as a defense to an action under G.S. 50-6 and since the prior judicial determination did not mark the beginning of the parties\u2019 separation, their physical separation having occurred over three years before such determination.\nAPPEAL by defendant from Cecil, Judge. Judgment entered 14 July 1978 in District Court, GUILFORD County. Heard in the Court of Appeals 21 May 1979.\nFacts necessary for this decision are summarized in the opinion below.\nGerald C. Parker for defendant appellant.\nNo counsel contra."
  },
  "file_name": "0580-01",
  "first_page_order": 608,
  "last_page_order": 609
}