Presson v. Presson

182 S.E.2d 614 (1971)

12 N.C. App. 109

Lynda Turner PRESSON v. Harold Benjamin PRESSON.

No. 7126DC466.

Court of Appeals of North Carolina.

August 4, 1971.

*616 Edwards & Millsaps by Joe T. Millsaps, Charlotte, for plaintiff appellee.

Weinstein, Sturges, Odom & Bigger by T. LaFontine Odom, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant assigns as error the denial of his motion to dismiss made at the close of plaintiff's evidence and renewed at the close of all the evidence. Such a motion, apparently made under Rule 41(b), in an action or cause tried by the court without a jury challenges the sufficiency of the plaintiff's evidence to establish her right to relief. Wells v. Sturdivant Life Ins. Co., 10 N.C.App. 584, 179 S.E.2d 806 (1971). In determining the sufficiency of the evidence in this cause, when the trial judge denied defendant's motion for dismissal, he was subject to the same principles applicable under our former procedure with respect to the sufficiency of the evidence to withstand the motion for nonsuit. Wells v. Sturdivant Life Ins. Co., supra.

We are of the opinion that plaintiff's evidence, together with pertinent evidence presented by defendant, did not make out a prima facie case and was not sufficient to support the order in her favor. Defendant's motion to dismiss should have been granted.

In cases involving alimony without divorce on the grounds that defendant has offered such indignities to the plaintiff as to render her condition intolerable and life burdensome, our courts have not agreed upon an undeviating rule as to what constitutes "such indignities" but leave it to the courts to deal with each particular case and to determine it upon its own peculiar circumstances. Barwick v. Barwick, 228 N.C. 109, 44 S.E.2d 597 (1947). Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911). Taylor v. Taylor, 76 N.C. 433 (1877).

Here, we have the unusual case of the parties living together at the time the action was instituted and the hearing held. The substance of plaintiff's evidence showed: Defendant does not take her out very often. Although he has regularly given her Christmas gifts, he has not given her anniversary or birthday gifts for the past five years. Defendant is the quiet type and there is a lack of communication between the two of them. Defendant does not spend much time at home but "when I want to get in touch with him, I have no problem. He would be at work, at home, or working on his car at his mother's home." Defendant did not take plaintiff to the annual Christmas party given at his place of employment in December 1970. Defendant is a steady worker and misses very little work; he is a good father and loves his daughter; and he had done a considerable amount of work about the mobile home. Plaintiff admitted that the failure to receive anniversary or birthday presents had not bothered her much. Defendant stated on cross-examination that he did not love his wife but did not hate her; that his failure to love her was because she misled him into marrying her in that she claimed to be pregnant when in fact she was not.

Considering all the pertinent evidence, we cannot say that it shows that defendant has offered such indignities to the plaintiff as to render her condition intolerable and life burdensome.

For the reasons stated, the judgment of the trial court is

Reversed.

MORRIS and PARKER, JJ., concur.