Hudson v. Hudson

204 S.E.2d 697 (1974)

21 N.C. App. 412

Earl H. HUDSON v. Dixie G. HUDSON.

No. 7428DC166.

Court of Appeals of North Carolina.

May 1, 1974.

*698 Bruce A. Elmore, by George W. Moore, Asheville, for plaintiff appellant.

Wade Hall, Asheville, for defendant appellee.

MORRIS, Judge.

Plaintiff's first assignment of error is to the admission of certain evidence offered by defendant. Defendant's daughter testified that she believed an assault occurred in 1955. The error, if any there be, is rendered harmless by the overwhelming evidence of assaults by plaintiff on the person of defendant. As we have stated many times, it does not suffice that appellant show mere technical error, he must *699 show that absent the error, a different result would likely have ensued. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). Appellant excepts as well to the admission of defendant's testimony concerning what her daughter had told her concerning the acts of incest committed by plaintiff. Even if this evidence could not be sustained as corroborating the previous statement of defendant's daughter, the exception is deemed abandoned, for plaintiff made no motion to strike. Brown v. Green, 3 N.C.App. 506, 165 S.E.2d 534 (1969).

The trial court properly denied the motions to dismiss the defendant's claims and to set aside the verdict. There is no merit to plaintiff's contention that defendant has failed to establish that she was a dependent spouse. The uncontradicted evidence shows that defendant had not been regularly employed for 18 or 19 years prior to the separation, that she was completely supported by her husband and that her time was devoted to housework and rearing her children. It is clear from this evidence that plaintiff is a dependent spouse within the purview of G.S. § 50-16.1(3).

Plaintiff contends that the trial court erred in submitting the issue of abandonment to the jury inasmuch as defendant left the home during plaintiff's absence. This contention is untenable.

"It is unnecessary for a husband to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him. This, under our decisions, would constitute abandonment by the husband." Blanchard v. Blanchard, 226 N.C. 152, 154, 36 S.E.2d 919 (1946).

The record before us is replete with evidence of acts of cruelty inflicted upon the defendant by the plaintiff. The trial court properly submitted the issue of abandonment to the jury.

Plaintiff excepts to the court's instruction on the provocation that would be required to justify the alleged acts of cruelty perpetrated on defendant. Inasmuch as plaintiff fails to specify the objectionable portion of the charge or state what the court should have charged, this assignment of error is deemed abandoned. Investment Properties v. Allen, 281 N.C. 174, 188 S.E.2d 441 (1972); Motors, Inc. v. Allen, 20 N.C.App. 445, 201 S.E.2d 513 (1974). For the same reasons, the assignment of error to the portion of the charge regarding the jury's answers to the issues submitted must fail.

Plaintiff further assigns error to the court's failure to instruct the jury on condonation. Condonation is an affirmative defense, and as such, it must be alleged. Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964). The issue of condonation was not raised in the pleadings, and plaintiff did not request a special instruction as required by G.S. § 1A-1, Rule 51(b). Where the court has charged adequately on the material aspects of the case arising on the evidence and has fairly applied the law to the factual situation, the charge will not be held error for failure of the court to instruct on subordinate features absent a request. Koutsis v. Waddel, 10 N.C.App. 731, 179 S.E.2d 797 (1971).

Plaintiff's final assignment of error is to the remarks of the defendant's attorney in the presence of the jury regarding additional instructions. Since plaintiff made neither an objection nor an exception to these statements at the time they were made, the assignment of error is ineffectual. State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968).

No error.

CAMPBELL and VAUGHN, JJ., concur.