McLeod v. McLeod

161 S.E.2d 635 (1968)

1 N.C. App. 396

Dr. W. L. McLEOD v. Lee Richardson McLEOD.

No. 68SC166.

Court of Appeals of North Carolina.

June 12, 1968.

Brown, Brown & Brown by Richard L. Brown, Jr. and Richard Lane Brown, III, Albemarle, for plaintiff appellee.

Sanders, Walker & London by Robert G. Sanders and Larry Thomas Black, Charlotte, for defendant appellant.

CAMPBELL, Judge.

This case has been presented to the Court by attorneys as a case which turns on whether the pendency of a prior action in Mecklenburg for alimony without divorce between the same parties abates the action in Stanly County for absolute divorce. The appellant relies on Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796. The appellee relies on Fullwood v. Fullwood, 270 N.C. 421, 154 S.E.2d 473.

*636 The Cameron case holds that the pendency of an action for divorce from bed and board on the ground of abandonment abates an action for absolute divorce. The test that determines when such a suit will abate the second action was stated in that case as follows:

"* * * (T)he pendency of the prior action abates the subsequent action when, and only when, these two conditions concur: (1) The plaintiff in the second action can obtain the same relief by a counterclaim or cross demand in the prior action pending against him; and (2) a judgment on the merits in favor of the opposing party in the prior action will operate as a bar to the plaintiff's prosecution of the subsequent action."

In arriving at the conclusion that in the Cameron case "a judgment on the merits in favor of the opposing party in the prior action will operate as a bar to the plaintiff's prosecution of the subsequent action." Judge Ervin said the wife in her prior action must prove that her husband has wilfully abandoned her. "Consequently, the wife may defeat the husband's action for an absolute divorce under G.S. § 50-6 by showing as an affirmative defense that the separation of the parties has been occasioned by the act of the husband in wilfully abandoning her. * * * It follows that a judgment on the merits in favor of Mrs. Cameron in the prior action in Sampson County will operate as a bar to Cameron's prosecution of the subsequent action in New Hanover County. Such judgment will necessarily adjudicate that Cameron has wilfully abandoned Mrs. Cameron."

In the instant case, a judgment on the merits in the alimony without divorce action will not act as a bar to the action for absolute divorce on the ground of one year separation. Thus, the Cameron case is not controlling here.

The Fullwood case, supra, is more like the instant case in that the first pending action, there as here, was a proceeding under G.S. § 50-16, namely: an action for alimony without a divorce. The Court held in that case that the prior pending action would not abate a subsequent action for an absolute divorce on the ground of one year separation.

In the instant case, the wife contends that she will be irreparably damaged because she cannot protect her right to alimony in the absolute divorce action; and if she loses in her race to obtain her judgment in her pending action for alimony without a divorce before her husband obtains an absolute divorce, she will be deprived of her alimony. G.S. § 50-16 has been amended, and the amendment became effective 1 October 1967, which was prior to the institution of the instant case in Stanly County. Under the amendment the wife, if she is the dependent spouse, may set up a cross action in the husband's suit for absolute divorce in Stanly County and, thus, protect her right to alimony without being dependent upon a race to obtain a court judgment.

The motion to move the case to Mecklenburg County for the convenience of witnesses was addressed to the discretion of the trial court. The wife has not shown any abuse of the trial court's discretion.

The wife appellant has failed to show any error in the order entered by the trial tribunal. It is

Affirmed.

BRITT and MORRIS, JJ., concur.