{
  "id": 8551347,
  "name": "NOAH DANIEL PHILLIPS v. ANNIE BRANSON PHILLIPS",
  "name_abbreviation": "Phillips v. Phillips",
  "decision_date": "1970-09-16",
  "docket_number": "No. 7019SC436",
  "first_page": "438",
  "last_page": "440",
  "citations": [
    {
      "type": "official",
      "cite": "9 N.C. App. 438"
    }
  ],
  "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": "N.C. Gen. Stat. \u00a7 50-10",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "opinion_index": 0
    },
    {
      "cite": "167 S.E. 2d 761",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "275 N.C. 370",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8558797
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/nc/275/0370-01"
      ]
    }
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Mallard, C.J., and Parker, J., concur."
    ],
    "parties": [
      "NOAH DANIEL PHILLIPS v. ANNIE BRANSON PHILLIPS"
    ],
    "opinions": [
      {
        "text": "Hedrick, J.\nOf the numerous assignments of error brought forward and argued on this appeal, we deem it necessary to discuss only that one relating to the court\u2019s allowing the plaintiff-husband to testify as to matters tending to show that the defendant-wife had committed adultery.\nDuring the trial of this cause, while the plaintiff-husband was being cross-examined by the defendant-wife\u2019s counsel, Mr. Burton, the record discloses that the following occurred:\n\u201cQ. When did she leave, if you know?\n\u201cA. I believe it was October.\n\u201cQ. October what?\n\u201cA. I don\u2019t remember but it was October, I am quite sure. I caught her with this man here and the baby one night and I took it to Court.\n\u201cMr. Burton : I didn\u2019t ask him that.\n\u201cThe Court : He can explain. Go ahead.\n\u201cMr. Burton: Objection-Overruled\n\u201cA. I caught her this night out at this colored church out in the woods one Sunday night with the baby, about 9 o\u2019clock and I took the car and then I took her back to her mother\u2019s and she got her brother to take her up at the farm and stayed about two days and then she went back home and that was in October, best I recall.\u201d\nThe appellant contends that the court committed prejudicial error in allowing the husband to testify over the defendant\u2019s objection as to the adulterous conduct of his wife. G.S. 50-10, in pertinent part, provides:\n\u201cThe material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a jury, and on 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\nIn Hicks v. Hicks, 275 N.C. 370, 167 S.E. 2d 761 (1969), Branch, J., said, \u201cThe provisions of N.C. Gen. Stat. \u00a7 50-10 are not limited to \u2018any action or proceeding for divorce on account of adultery\u2019 or \u2018actions or proceedings in consequence of adultery,\u2019 but includes \u2018every complaint asking for a divorce.\u2019 Thus, its declaration that the husband and wife are incompetent witnesses to prove the adultery of the other refers to all divorce actions, including actions for alimony without divorce.\u201d Therefore, in the instant case it was prejudicial error for the court to allow the husband to testify to such facts as tended to show that the wife had committed adultery.\nFor the reasons stated the defendant is entitled to a new trial.\nNew trial.\nMallard, C.J., and Parker, J., concur.",
        "type": "majority",
        "author": "Hedrick, J."
      }
    ],
    "attorneys": [
      "Coltrane and Gavin, by T. Worth Coltrane, for plaintiff appellee.",
      "Ottway Burton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "NOAH DANIEL PHILLIPS v. ANNIE BRANSON PHILLIPS\nNo. 7019SC436\n(Filed 16 September 1970)\nDivorce and Alimony \u00a7 13; Evidence \u00a7 12\u2014 absolute divorce \u2014 testimony of adultery by spouse\nIn the husband\u2019s action for absolute divorce on the ground of one year\u2019s separation, the trial court committed prejudicial error in allowing the husband to testify on cross-examination as to the adulterous conduct of his wife. G.S. 60-10.\nAppeal by defendant from Gambill, J., 2 March 1970 Session of Randolph Superior Court.\nThis was a civil action brought by plaintiff-husband, Noah Daniel Phillips, against the defendant-wife, Annie Branson Phillips, on 17 December 1968 in the Randolph County Superior Court for absolute divorce on the grounds of one year separation. The defendant-wife filed answer denying separation and alleging abandonment as a further defense, praying that the plaintiff-husband be denied a divorce and praying for counsel fees. Both parties offered evidence in support of their allegations. Issues were submitted to and answered by the jury in favor of the plaintiff-husband, and the court entered judgment on the verdict awarding the plaintiff an absolute divorce from the defendant.\nThe defendant appealed to the North Carolina Court of Appeals assigning error.\nColtrane and Gavin, by T. Worth Coltrane, for plaintiff appellee.\nOttway Burton for defendant appellant."
  },
  "file_name": "0438-01",
  "first_page_order": 462,
  "last_page_order": 464
}
