Campbell v. Campbell, 270 N.C. 298 (1967)

May 3, 1967 · Supreme Court of North Carolina

270 N.C. 298

LELIA CURTIS CAMPBELL v. MARCUS E. CAMPBELL.

(Filed 3 May, 1967.)

Divorce and Alimony § 13—

In this suit by the wife for divorce on the ground of separation, the husband’s evidence is held insufficient to warrant the submission of the issue of the wife’s wrongful abandonment of him, interposed by him as a defense to her action.

Appeal by defendant from Farthing, J., January 2, 1967 Conflict Civil Session, Randolph Superior Court.

The plaintiff (wife) instituted this civil action on September 15, 1965 against the defendant (husband) for absolute divorce on the ground the parties are separated' and have continuously lived separate and apart from each other since August 1, 1962. The parties were married June 3, 1934 and six- children were born of the marriage, four are emancipated. The two youngest are ages 10 and 12. They spend most of the time with the defendant.

The defendant filed answer and testified as a witness. Both in the answer and as a witness, he admitted the marriage and the separation as alleged. As a further defense, however, he alleged the plaintiff, without cause or excuse, abandoned him. Some rather nebulous allegations of wrongdoing were set out in the further defense.

In his testimony, the defendant admitted the parties had some differences, that the plaintiff wanted to leave, and that he actually moved her household furnishings to her new apartment. He testified:' “As to her taking the money she earned and buying clothing and food for the family and me, she was laying up; that’s what the biggest trouble ... . I didn’t try to keep her from leaving me on August 1,. 1962, except that I. said, ‘You can stay on my terms and conditions; that you be a good wife and mother.”* The defendant tendered the issue of abandonment which the Court refused to submit. The jury answered the other issues in plaintiff’s favor. From .the judgment of absolute, divorce, the defendant excepted and appealed.

Ottway Burton for defendant appellant.

Walker, Anderson, Bell & Ogburn by John N. Ogburn, .Jr., for plaintiff appellee.

Per Curiam.

The defendant’s evidence showed a separation of the parties because the wife would not stay “on his terms”. He admitted moving her and her furnishings to a new apartment. Thereafter, the parties lived separate and apart for more than three years before the wife instituted this action. For at least four months dur>-ing the separation, the plaintiff kept and supported the two minor children. The defendant did not claim he contributed anything to the plaintiff’s support, or the children’s while they were with the plaintiff. He remained in the house both had purchased. These facte established by the defendant’s evidence were insuffi'cient to warrant an issue of wrongful abandonment. . .

No error.