Malloy v. Malloy
Malloy v. Malloy
Opinion of the Court
Defendant first assigns error to the refusal of the trial judge to submit the tendered issue of condonation to the jury.
In the present case the defendant pled abandonment as a ground for alimony without divorce and as a defense to plaintiff’s claim for divorce on the ground of one year’s separation. Abandonment requires that the separation be done wilfully and without just cause or provocation. Overby v. Overby, 272 N.C. 636, 158 S.E. 2d 799 (1968). Adultery is adequate cause for separation. Caddell v. Caddell, 236 N.C. 686, 73 S.E. 2d 923 (1953); Williams v. Williams, 230 N.C. 660, 55 S.E. 2d 195 (1949); G.S. 50-5(1). In the present case the evidence of con-donation was introduced for the purpose of establishing that adulterous acts by defendant did not provide cause for plaintiff to abandon defendant. Condonation is the forgiveness of a marital offense constituting a ground for divorce. 1 Lee, N. C. Family Law, § 87 (1963). Adultery is a ground for divorce.
The evidence, when viewed most favorably to the defendant, tended to show that from January 1972 to November 1973 the plaintiff suspected that his wife was committing adultery; that they had sexual intercourse on at least one occasion during that period; that defendant never denied her husband sexual relations; and that the last time they had sexual intercourse was in August 1973. We conclude that this evidence is sufficient to raise the issue of whether plaintiff condoned acts of adultery committed through August 1973. We are not unmindful that plaintiff’s evidence tended to show that defendant continued to commit adultery through November 1973, and that condonation is conditional upon cessation of the marital misconduct. However, in this case the jury was not limited to finding adulterous conduct after the time that defendant’s evidence tended to show condonation. ,If the jury had found that the only time that adultery was committed was prior to the time defendant’s evidence tended to show condonation, as would have been sufficient under the instructions given by the trial judge, then defendant was prejudiced by the failure of the court to submit the issue of condonation and she is entitled to a new trial.
Defendant’s remaining assignment of error pertains to the charge on adultery. We think that it is unnecessary to discuss this assignment since the error, if any, may not be repeated at the new trial.
Judgment vacated and cause remanded for a new trial.
Reference
- Full Case Name
- ALBERTA SCOGGINS MALLOY v. JOHN HAROLD MALLOY -and- JOHN H. MALLOY v. ALBERTA SCOGGINS MALLOY
- Cited By
- 1 case
- Status
- Published