{
  "id": 8548918,
  "name": "ANNE L. GORDON v. JOHN W. GORDON",
  "name_abbreviation": "Gordon v. Gordon",
  "decision_date": "1970-02-04",
  "docket_number": "No. 7021DC1",
  "first_page": "206",
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      "cite": "4 N.C. App. 426",
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  "last_updated": "2023-07-14T21:45:53.911218+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "BeocK and Beitt, JJ., concur."
    ],
    "parties": [
      "ANNE L. GORDON v. JOHN W. GORDON"
    ],
    "opinions": [
      {
        "text": "GRAHAM, J.\nThe principal evidence offered by plaintiff on the issue of defendant\u2019s adultery related to certain conduct of defendant that occurred in January, 1969, approximately one year after the complaint was filed. Apparently no motion to amend the complaint to allege adultery on these occasions was addressed to the court below. Rather, upon objection by defendant to the admission of this evidence, plaintiff\u2019s counsel insisted to the court that evidence tending to show that defendant was \u201cliving with someone else\u201d was competent on the question of abandonment. Whether or not the evidence was competent for this purpose is not here material because in charging the jury on the issue of defendant\u2019s adultery the court recapitulated the testimony concerning defendant\u2019s conduct \u201cwith another woman\u201d in January of 1969. The jury, in determining the issue of adultery, was therefore permitted to consider evidence of acts of adultery that were not alleged in the complaint.\nIt has long been the rule in this State that to establish a cause of action there must be both allegata and probata and the two must correspond. 6 Strong, N.C. Index 2d, Pleadings, \u00a7 36; Burns v. Burns, 4 N.C. App. 426, 167 S.E. 2d 82. Evidence not supported by allegations or in conflict therewith must be excluded. Vending Co. v. Turner, 267 N.C. 576, 148 S.E. 2d 531; Eason v. Grimsley, 255 N.C. 494, 121 S.E. 2d 885.\nThough the new rules of civil procedure which became eff-fective 1 January 1970 liberalize pleading requirements, they nevertheless require a claim for relief to be set forth sufficiently particular \u201cto 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, . . .\u201d G.S. 1A-1, Rule 8. Suffice it to say that a pleading filed 16 January 1968 cannot give notice of occurrences that do not take place until a year later.\nThe only evidence raising inferences that defendant engaged in adultery \u201cas alleged in the complaint\u201d was the testimony of the plaintiff wife. She testified over objection that on one occasion she had found her husband and another woman alone together in the bedroom of a house where they were attending a party. Defendant\u2019s counsel objected and requested to be heard in the absence of the jury. The court answered: \u201cI am not going to let her go that far.\u201d (Emphasis added). Plaintiff continued: \u201cAt the time, I left to get a cold cloth to take back to the bedroom. There was just two. There was carpet, they didn\u2019t know I was in the bedroom.\u201d Plaintiff later testified that shortly before the parties separated she found defendant\u2019s underwear and shorts covered with blood. In our opinion the admission of this evidence constitutes prejudicial error requiring a new trial. The husband and wife are incompetent witnesses to prove the adultery of the other in all divorce actions, including actions for alimony without divorce. G.S. 50-10; Hicks v. Hicks, 275 N.C. 370, 167 S.E. 2d 761.\nWe are not here concerned with whether the testimony of the wife, standing alone, was sufficient to carry the issue of the husband\u2019s adultery to the jury. The fact is the issue was submitted and the incompetent testimony of the wife was before the jury. We cannot say that the evidence was not considered by the jury as indicating adulterous conduct on the part of the husband.\nPlaintiff has filed a motion in this court to amend her complaint to allege acts of adultery committed by the defendant in January of 1969. Since this case must in any event be remanded for a new trial on all issues raised by the pleadings and evidence, we deny plaintiff\u2019s motion without prejudice to her to file a similar motion in the court below.\nNew trial.\nBeocK and Beitt, JJ., concur.",
        "type": "majority",
        "author": "GRAHAM, J."
      }
    ],
    "attorneys": [
      "White, Crumpler and Pfefferkom by William C. Pfefferkom for plaintiff appellee.",
      "Wilson and Morrow by John F. Morrow for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "ANNE L. GORDON v. JOHN W. GORDON\nNo. 7021DC1\n(Filed 4 February 1970)\n\u25a01. Divorce and Alimony \u00a7\u00a7 14, 16\u2014 evidence of acts of adultery occurring after pleading was filed\nIn this action for alimony without divorce on grounds of abandonment and adultery, the trial court erred in the admission of evidence of acts of adultery by defendant that occurred approximately a year after the complaint was filed, there having been no motion in the trial court to amend the complaint to allege adultery on these occasions.\n2. Pleadings \u00a7 36\u2014 allegata and probata\nTo establish a cause of action there must be both allegata and prodata and the two must correspond.\n3. Evidence \u00a7 15\u2014 evidence not supported by allegations \u2014 exclusion.\nEvidence not supported by allegations or in conflict therewith must be excluded.\n4. Rules of Civil Procedure \u00a7 8\u2014 pleading occurrences intended to be proved \u2014 occurrences after pleading is filed \u2014 notice\nAlthough the new rules of civil procedure which became 1 effective 1 January 1970 liberalize pleading requirements, they require a claim for relief to be set forth sufficiently particular to give the court and the parties notice of the occurrences intended to be proved showing that the pleader is entitled to relief, G.S. 1A-1, Rule 8, and a pleading cannot give notice of occurrences that take place a year after the pleading is filed.\n5. Divorce and Alimony \u00a7\u00a7 14, 16\u2014 alimony without divorce \u2014 testimony of adultery by spouse\nThe wife is an incompetent witness to prove adultery of the husband in an action for alimony without divorce. G.S. 50-10.\nAppeal by defendant from Henderson, District Judge, 8 April 1969 Civil Session of Foesyth County District Court.\nPlaintiff instituted this action against her husband for alimony without divorce on 16 January 1968. The complaint alleged defendant abandoned plaintiff on 20 November 1967 and further \u201c[t]hat throughout the marriage . . . defendant has constantly dated other women and still is dating other women; that the defendant has committed adultery on numerous occasions, and as the plaintiff is informed and believes has committed adultery since the separation of the parties in November of 1967.\u201d Defendant answered denying plaintiff\u2019s essential allegations and alleging that the separation resulted from plaintiff\u2019s wrongful conduct.\nTwo issues were submitted to the jury and, answered as follows:\n\u201c1. Did the defendant abandon the plaintiff as alleged in the complaint?\nANSWER: No\n2. Did the defendant commit adultery as alleged in the complaint?\nANSWER: Yes\u201d\nDefendant appealed from judgment entered on the verdict.\nWhite, Crumpler and Pfefferkom by William C. Pfefferkom for plaintiff appellee.\nWilson and Morrow by John F. Morrow for defendant appellant."
  },
  "file_name": "0206-01",
  "first_page_order": 228,
  "last_page_order": 231
}