{
  "id": 8552920,
  "name": "BERNIE H. PENCE v. FRANCES C. PENCE",
  "name_abbreviation": "Pence v. Pence",
  "decision_date": "1970-06-24",
  "docket_number": "No. 7020DC238",
  "first_page": "484",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T18:36:14.673474+00:00",
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  "casebody": {
    "judges": [
      "Mallaed, C.J., and GRAham, J., concur."
    ],
    "parties": [
      "BERNIE H. PENCE v. FRANCES C. PENCE"
    ],
    "opinions": [
      {
        "text": "MoRRis, J.\nDefendant\u2019s first assignment of error is concerned with the transfer of the case to the District Court, defendant contending that in view of the history of the case, this was error. Defendant cites no authority for this position and has shown no prejudice to her position by the transfer. It is clear that under G.S. 7A-244, the district court has jurisdiction of this type case and that G.S. 7A-259 gives the superior court authority to transfer such cases, on its own motion, to the district court. This assignment of error is overruled.\nBy assignment of error No. 2 defendant contends that the court erred in sustaining plaintiff\u2019s objection to the following question by defendant\u2019s counsel on voir dire: \u201cWould you grant a divorce to the plaintiff solely on the evidence of the fact he had been separated one year prior to the filing of this suit?\u201d Defendant cites no authority for this position, contending only that a one-year separation as a prerequisite for a divorce is so well entrenched in the minds of laymen in general that if the separation for one year be proved, the jury will grant a divorce as a matter of course. We do not agree. The trial court has broad discretion in the voir dire questioning of juror\u2019s. Karpf v. Adams, 237 N.C. 106, 74 S.E. 2d 325 (1953). See also 99 A.L.R. 2d 1, \u00a7\u00a7 4 and 8. Defendant has shown no abuse of discretion, and this assignment of error is overruled.\nDefendant contends, by assignment of error Nos. 3 and 4, that the court erred in permitting plaintiff to be asked a leading question, the answer to which was nonresponsive and a conclusion. She also contends it was error to refuse to permit one of her witnesses to answer a question for purposes of corroboration. Defendant cites no authority for these positions. Permitting leading questions is within the discretion of the trial court and will not be disturbed on appeal absent an abuse thereof. McKay v. Bullard, 219 N.C. 589, 14 S.E. 2d 657 (1941). From the record, it appears that defendant -objected only to the question, giving no grounds for the objection and making no motion to strike the answer. This contention is without merit and is overruled. The evidence defendant attempted to elicit from her witness in response to her counsel\u2019s question, to which objection was sustained, was not corroborative of any testimony appearing in the record, was hearsay, and was properly excluded.\nBy assignment of error No. 5 defendant contends that the court erred by expressing an opinion when allowing the introduction into evidence of one of defendant\u2019s exhibits. The exhibit in question \u2022consisted of 149 pages of medical records, portions of which were \u25a0objected to by plaintiff as being irrelevant on the grounds that they referred to a prior accident. Plaintiff excepted to their introduction into evidence for the purpose of corroborating defendant\u2019s contentions about her medical treatment. Defendant objected to the following statement by the court: \u201cMembers of the Jury, that\u2019s a voluminous record of the hospital bills there, and unless you particularly want to, it\u2019s not necessary that you read them. However, you are certainly free to look at anything in the file, but I want to instruct you, you don\u2019t have to read everything in there.\u201d In holding that the trial judge did not express an opinion in a case the Court in State v. Jones, 67 N.C. 285 (1872), stated:\n\u201cIn such a case it will not be sufficient to show that he did or said what might have had an unfair influence, or that his words, when critically examined and detached from the context and from the incidents of the trial, are capable of an interpretation from which his opinion on the weight of the testimony may be inferred; but it must appear with ordinary certainty that his manner of arraying and presenting the testimony was unfair, and likely to be prejudicial to the defendant, or that his language, when fairly interpreted, in connection with so much of the context as is set out in the record, was likely to convey to the jury his opinion of the weight of the testimony.\u201d\nWe think this language is appropriate here. Defendant contends the statement intimated that her evidence was worthless and amounted to an instruction that the jury should disregard this part of her evidence. We do not agree. Defendant\u2019s counsel admitted that he did not expect the jury to read everything in the exhibit. We are of the opinion that the judge was merely trying to relieve any doubts on the part of the jury as to whether they were required to read every word of the exhibit, since he had already informed them it was being admitted only for corroborative purposes. This assignment of error is overruled.\nAssignment of error No. 7 is related to the submission of issues to the jury. The court submitted four issues to the jury, number four relating to whether plaintiff had willfully abandoned defendant. The jury found that he had not. Defendant contends it was error for the court to refuse to submit two additional issues proposed by her, both of which concerned the alleged treatment of defendant by plaintiff and both of which would have weighed on the issue of constructive abandonment. Defendant cites no authority for this position nor does her answer allege any facts which would require the submission of the issues. The court in the charge adequately instructed the jury with respect to constructive abandonment. The jury by its verdict rejected defendant\u2019s contentions. This assignment of error is overruled.\nDefendant contends by assignment of error No. 8 that she was prejudiced by opposing counsel\u2019s argument and reference to matters outside the record concerning another case between the same parties. Attorneys have wide latitude in arguing their case to the jury. Cuthrell v. Greene, 229 N.C. 479, 50 S.E. 2d 525 (1948). Plaintiff\u2019s counsel did appear to go outside the record in his argument in telling the jury that defendant\u2019s counsel had also represented defendant in another pending action. Even if error be conceded, we do not deem it to be prejudicial. There was evidence from the defendant that both plaintiff\u2019s counsel and a deputy sheriff had testified in a criminal action against the plaintiff for nonsupport. Defendant also testified that she was plaintiff in a pending civil action for support. During argument of plaintiff\u2019s counsel the court instructed the jury that it should take the law from the court and not from the attorneys. The court in its charge further instructed the jury that they would take the evidence as it came from the witnesses and not from the attorneys. This assignment of error is overruled.\nAssignment of error No. 9 urges that the court erred in the charge by not relating the law to the evidence and by giving unequal stress to the contentions of the parties. This is a broadside exception, no reference being made to the objectionable portions in the record, and is overruled. Lewis v. Parker, 268 N.C. 436, 150 S.E. 2d 729 (1966).\nBy assignment of error No. 10 defendant objects to the court\u2019s action in awarding only $500 counsel fees, suggesting an abuse of discretion. However, defendant has shown no abuse of discretion, ;and this assignment of error is overruled. Stadiem v. Stadiem, 230 N.C. 318, 52 S.E. 2d 899 (1949).\nAssignment of error No. 6 was not brought forward in defendant\u2019s brief and is deemed abandoned under Rule 28, Rules of Practice in the Court of Appeals of North Carolina.\nFor the reasons stated herein the judgment is\nAffirmed.\nMallaed, C.J., and GRAham, J., concur.",
        "type": "majority",
        "author": "MoRRis, J."
      }
    ],
    "attorneys": [
      "Webb, Lee, Davis and Sharpe by Joseph G. Davis, Jr., for plaintiff appellee.",
      "Ottway Burton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "BERNIE H. PENCE v. FRANCES C. PENCE\nNo. 7020DC238\n(Filed 24 June 1970)\n1. Divorce and Alimony \u00a7 1\u2014 absolute divorce \u2014 transfer from superior to district court\nSuperior court had authority to transfer to the district court an action for absolute divorce which had twice ended in mistrial in the superior court; the district court had jurisdiction to try the action. G.S. 7A-244, G.S. 7A-259.\n2. Divorce and Alimony \u00a7 2\u2014 absolute divorce \u2014 voir dire examination of jurors \u2014 proper questioning\nIn an action for absolute divorce based on one year\u2019s separation, trial court did not abuse its discretion in excluding, upon plaintiff\u2019s objection, the following question asked by defendant to prospective jurors on voir dire: \u201cWould you grant a divorce to the plaintiff solely on the evidence that he had been separated one year prior to the filing of this suit?\u201d\n3. Jury \u00a7 6\u2014 voir dire questioning of jurors \u2014 discretion of court The trial court has broad discretion in the voir dire questioning of jurors.\n4. Witnesses \u00a7 8\u2014 leading questions\nPermitting leading questions is within the discretion of the trial court and will not be disturbed on appeal absent an abuse thereof.\n5. Trial \u00a7 10\u2014 introduction on voluminous exhibit \u2014 remark by trial court\nTrial court\u2019s remark in a divorce action that the jury did not have to read all of a 149-page medical records exhibit introduced by the wife was not an expression of opinion and did not prejudice the wife.\n45. Divorce and Alimony \u00a7 2\u2014 husband\u2019s action for absolute divorce \u2014 submission of issues\nDefendant wife in absolute divorce action was not prejudiced by trial court\u2019s refusal to submit issues to the jury relating to the constructive abandonment of her by the husband, where the trial court submitted an issue of wilful abandonment which the jury answered in the negative.\n7. Trial \u00a7 11\u2014 argument to jury\nAttorneys have wide latitude in arguing their case to the jury.\n8. Appeal and Error \u00a7 SI\u2014 broadside exception to the charge\nAn assignment of error that the court erred in the charge by not relating the law to the evidence and by giving unequal stress to the contentions of the parties, with no reference being made to the objectionable portions in the record, is broadside.\n9. Divorce and Alimony \u00a7 18\u2014 counsel fees\nDefendant wife in absolute divorce action failed to show that trial court abused its discretion in awarding her only $500 counsel fees.\n10. Appeal and Ei\u2019ror \u00a7 45\u2014 the brief \u2014 abandonment of exceptions\nAssignment of error not brought forward in defendant\u2019s brief is deemed abandoned. Rule of Practice in the Court of Appeals No. 28.\nAppeal by defendant from Webb, District Judge, 13 October 1969 Session of Richmond County District Court.\nPlaintiff instituted this action for an absolute divorce based on one year\u2019s separation. The defendant wife answered denying a legal separation, alleging defenses of constructive abandonment and nonsupport and praying that plaintiff be denied an absolute divorce and that she be awarded counsel fees and \u201cdefense money\u201d. The case was brought to trial twice in the Richmond County Superior Court, both times ending in a mistrial. On 21 February 1969, the case was transferred, over defendant\u2019s objection, to the District Court of Richmond County, where the jury answered the issues in favor of plaintiff. Plaintiff was granted an absolute divorce in accordance with the jury verdict, and defendant appealed.\nWebb, Lee, Davis and Sharpe by Joseph G. Davis, Jr., for plaintiff appellee.\nOttway Burton for defendant appellant."
  },
  "file_name": "0484-01",
  "first_page_order": 508,
  "last_page_order": 513
}