#### TERISA E. PAGE v. JOSEPH B. PAGE.

(Filed 11 December, 1912.)

1. Marriage and Divorce — Misconduct of Plaintiff.

When the misconduct of the complaining party in an action for divorce a mensa et thoro was calculated to and reasonably did induce the conduct of defendant, relied upon in the action, he or she, as the ease may be, cannot take advantage of his or her own wrong, and the decree of divorcement will not be granted.

2. Same — Alimony Peíldente Lite — Main Relief — Questions for Jury —Practice—Appeal and Error.

When in an action for a divorce a mensa et thoro brought by the wife a motion for alimony pendente lite is made, and it appears that she herself is in fault, and that her own misconduct brought about the results complained of, the motion for alimony should not be granted, leaving the issues on the main relief sought for the determination of the jury at the trial; and it appearing in this case that the defendant had placed the children of the marriage with his parents for their benefit, and that ' the lower court had ordered that the plaintiff should see them at certain intervals, the decree is affirmed in that respect, and reversed as to the allowance of attorney’s fees and alimony pendente lite.

Appeal by defendants from Foushee, J., at April Term, 1912, of Polk.

This is an action for divorce a mema et thoro, and was before the court below at the last term, on a motion for alimony pen-dente lite, which was heard upon the complaint and answer, read as affidavits, and also upon oral testimony taken before the court. The judge announced that in considering the matter he would accept the defendant’s testimony as true, and we will so treat it in this Court. Before the taking of testimony had closed, the defendant’s counsel stated that he had a number of witnesses present in court, by whom he proposed to prove that the plaintiff was cross, disagreeable, and erratic, and that she had often left home without cause or provocation on his part, and that she was so" irritable, disagreeable, and erratic as to keep his children continually in a state of consternation and fear, to all of which the defendant had testified. The judge refused to hear this evidence, on the ground that it only corroborated the de*171fendant and tbat it could not change bis opinion, and tbat because of tbe crowded condition of tbe docket be bad no time to bear it. Tbe judge found tbe following facts:

1. Tbat tbe plaintiff and defendant were married 18 July, 1895, and lived together until tbe month of June, 1911; tbat tbe plaintiff is 38 years of age, and tbe defendant 45; tbat they have two children, Paul and Eva, aged 12 and 4 years.

2. Tbat tbe plaintiff is a weak, delicate woman, nervous and hysterical; that she has never been strong; and in September, 1910, went to tbe hospital for treatment; tbat several doctors prescribed for her during her married life, and one of them told defendant that if something were not done for her tbat she might lose her mind; tbat another physician cautioned her bus-band tbat she must not be permitted to do any bard labor, and be must not let her lift even tbe weight of a coffee-pot; tbat tbe defendant did not provide her with a cook or laundress all tbe time, and she bad to do some of tbe cooking and some of tbe washing; tbat plaintiff and defendant were members of tbe Baptist Church, having been reared therein, but about five years ago tbe plaintiff joined tbe Holiness Church, and since that time there has been friction between plaintiff and defendant, tbe latter not being willing for bis children to go to tbe Holiness Church; tbat plaintiff’s moral character is -good.

3. Tbat defendant is a bard-working, industrious man, engaged in farming, and worth from $8,000 to $10,000; that be has always lived close and has accumulated property; tbat defendant thought bis wife was obstinate and unreasonable; tbat in June, 1911, tbe defendant took bis two children from bis and plaintiff’s home to tbe home of bis parents at Tryon, four or five miles distant, and left them there, and since tbat time has declined and refused to permit plaintiff to see them; tbat plaintiff has tried four times to see tbe children, and on her last visit defendant’s parents ordered her away and threatened to have her arrested by tbe town policeman; tbat a few Sundays before be took bis children to bis father’s, plaintiff was preparing to go to her own church and bad gotten tbe little girl dressed and ready to go, when defendant forbade her taking tbe little girl with her and forcibly prevented her from going with her mother; *172that defendant did not provide any buggy for the plaintiff to ride in to church, but left her to ride on a loaded wagon or walk, as she felt inclined; that defendant gave as his excuse that he had to use the buggy himself, and his wagon had to go to Landrum, where the plaintiff’s church was situate.

4. That while the court does not believe that the defendant was intentionally unkind and cruel, yet his wife’s condition was such that the result of his treatment was to render her life burdensome and her condition intolerable.

It is, therefore, ordered that the defendant pay to the plaintiff the sum of $50, as an allowance for counsel fees, the same to be paid within sixty days; also that he pay $25 per month, as alimony pendente lite, to begin with 1 May, and to continue until the further order of this court. It is further ordered that plaintiff be permitted to see her children on the second Sunday of each month between the hours of 9 a. m. and 5 p. m.

Defendant excepted to this order and appealed.

5. Gallert for plaintiff.

Smith, Shipmcm & Justice for defendant.

Walker, J.,

after stating the case: The facts found by the court bear a very different aspect when read in connection with the testimony of the defendant. The court has acquitted the defendant of any intended wrong, and when all of the facts are considered, he was guilty of no wrong at all. The true significance of the facts, as found by the court, does not appear until we have heard all of the defendant’s version, which we are to consider as true, according to the ruling of the court. The parties had lived together as man and wife for many years, and they had two children of their marriage, whose tender years required that they should receive careful nurture and admonition, and this, it seems, they did not get from their mother. We are to understand that she was “irritable, disagreeable, and erratic, and kept her children continually in a state of fear and consternation,” for the defendant so testified, the judge has said. And to more did he testify. It appears, from what he said of this unfortunate domestic tragedy, that the plaintiff is of a testy disposition, “cross and ill-tempered,” and exceedingly sen*173sitive and exacting. We would not be willing to call ber a virago or a termagant, even if tbe testimony shows that she was unruly and somewhat turbulent at times, for that would be harsh and unseemly, if not uncharitable, but prefer to use kind and gentle words, though her husband’s evidence, which we are to take as true, is strongly against her and does not present her to the Court in a very favorable light. There is nothing in the case to impeach the moral character or integrity of either one of the parties. The whole difficulty seems to have sprung from the wife’s infirmity of temper, and we are not at all surprised that the court would not impute any intentional wrongdoing to the defendant. The three allegations of wrong are that she was weak and was required to work contrary to the advice of her physician; that she joined the Holiness Church and defendant would not permit the children to attend the church, which caused friction between them, and that he would not provide her with a buggy in which to ride to her church, and she was compelled to ride on a wagon, and, lastly, that defendant took the children from her and placed them in his old home and under his mother’s care and guardianship.

The defendant, in his testimony, gives a circumstantial account of this family dispute, and it appears therefrom that the plaintiff was physically strong and able-bodied, and performed her household duties without complaint and without any apparent injury to herself. Her husband employed cooks, but she interfered with them and drove them off. He says that he never mistreated her, never drove her away or ordered her to go, though she had ordered him to leave home. She did just as she pleased, and insisted on doing it. She struck him with the dishrag when he was doing no more harm than looking after the tax-books. She was always contrary and always opposed anything he wished to do. The little boy wanted to hoe for him, and she objected and became very mad. She refused to cook, interfered with the women employed to cook, and made them leave, and defendant had to cook, and when he did, she would cook afterwards. She interfered with the washerwomen. He walked to Mill Springs to hire a hand, when there were others nearer who could have been employed, but she was not satis*174fied. He said something about darkies she had hired, and she jerked his hat off his head and called him a “stinking, lowdown rascal.” He then went out to see about the horses, and she followed him, and finally locked the door of the house, so that he could not enter, and he got in through a window and slept in a front room. This was repeated the next day. He called in every doctor in the county when she was sick, and had to change them several times to please her. She went to the hospital with his consent and at his expense. She would vilify his mother and preach a while — preached all day long to his aunt; and she would preach and then abuse him, saying that he was doomed to hell. These are only some of the things that were said and done. It is not necessary to detail all of them. He testified that he had never provoked this conduct towards him, had always provided a way for her to attend church and had always been kind to her. Her spells were worse sometimes than they were at others. One of the doctors said there was something wrong with her mind, and others that she was nervous.

Our conclusion is, from all the facts, that the plaintiff has shown no grounds for a divorce from bed and board, and consequently no right to alimony pending the suit. Upon the facts, as we view them, the defendant was not at fault in placing his children in the custody of his parents, where they could receive a mother’s care and attention. It is shown that they were placed there for that purpose. We see no sufficient proof of physical weakness, though there is some tending to show men-, tal weakness or an abnormal condition of her mind. It seems-that if defendant has laid his hand upon her, it was more in kindness than in anger. He supplied her every want. It is evident that she was nervous and sensitive, and magnified and exaggerated everything he did. The separation is due more to her misconduct than to anything that he may have done. He appears to have been very patient and forbearing, under trying circumstances. She received proper medical attention and he employed servants sufficient in number to do their work, if she had not interfered with them.

*175If tbe cruelty set up as a ground of divorce was provoked by tbe misconduct of tbe complainant, a divorce will not be granted. 14 Oye., 631. If bis conduct bad been sucb as to entitle ber to a divorce, but was induced by tbe continued exasperation and violence of tbe wife, or other misconduct on ber part, tbe same result would follow. There was no retaliation by tbe husband in this case, and certainly no excessive retaliation. Their domestic infelicity is apparently all due to tbe wife’s misconduct. It is settled by our decisions that, where the wife is tbe aggressor and by her conduct provoked that of ber husband, of which she complains, and it was calculated to do so, it is a bar to ber application for a divorce and for alimony. Whittington v. Whittington, 19 N. C., 64; Foy v. Foy, 35 N. C., 90; Setzer v. Setzer, 128 N. C., 170; Tew v. Tew, 80 N. C., 316; House v. House, 131 N. C., 140. No one will be allowed to take advantage of bis or ber own wrong. This maxim was applied to a case of divorce by Judge Pearson in Foy v. Foy, supra. In tbe words of tbe statute, Code, sec. 1285; Eevisal, see. 1562, tbe application for tbe divorce must be made “by tbe party injured,” and these words were construed in Steel v. Steel, 104 N. C., 631, to mean that neither of tbe spouses is entitled to divorce if bis or ber marital default provoked or induced tbe alleged misconduct of tbe other.

If tbe plaintiff will exercise a little more self-control and forbearance and perform ber household duties as becomes a dutiful wife, and exhibit a little more consideration for ber husband, and real affection for him and ber children, tbe present distressing situation will soon be changed, if not reversed, and ber home and ber life will become brighter and happier.

We may reproduce here what was so well said by Justice Hodman in tbe samewhat similar case of Miller v. Miller, 78 N. C., at p. 108: “We cannot think tbe defendant’s conduct, however reprehensible, was sucb Indignities’ as was intended to be covered by tbe statute, or was calculated to render tbe condition of any reasonable woman Intolerable, or ber life burdensome.’ This is not a case in which tbe law ought to interfere to sanction, and perhaps perpetuate, tbe separation of a married pair who may again unite without impropriety, and with*176out tbe loss of self-respect on tbe part of either, and wbo, taugbt by experience, may live henceforth happily together. An English poet once gave advice to húsbands, which Lord Chatham made immortal, even if its own good sense had not otherwise served to make it so, by quoting it in one of his great speeches on the policy of Britain towards America. The advice will equally teach wives how to manage their husbands:

> “ ‘Be to his faults a little blind,

> Be to his virtues very kind,

> And clap your padlock on his mind'!’”

It is not intended to imply by the quotation that defendant has been doing anything which the law would denominate as misconduct. But whether he has or not, the advice to the wife is not out of place.

"We do not concur with the court in its conclusion that, assuming the defendant’s testimony to be true, the plaintiff is entitled to alimony. On the contrary, it appears therefrom that there was no cruel or barbarous treatment and nothing whatever calculated to make the condition or life of an ordinary and normal woman either intolerable or burdensome. The defendant made the best he could of a bad situation, when his patience and forbearance must have been sorely tried. Both parties will profit by remembering that, “Our remedies oft in ourselves do lie.”

The order granting alimony will be vacated and the order permitting the plaintiff to see her children at the intervals named will remain in force. It may be modified, if need be, in the discretion of the court from time to time, and as the exigencies of the case may require. Setzer v. Setzer, 129 N. C., 296.

Our- decision does not prevent a trial of the issues. The plaintiff hereafter may allege and establish a better case than she has in the present record, and one entitling her to a divorce, but there is no such case now presented.

Error.