Cushing v. Cushing , 263 N.C. 181 ( 1964 )

139 S.E.2d 217 (1964) 263 N.C. 181

Judith Baumann CUSHING
v.
Charles Crowe CUSHING.

No. 95.

Supreme Court of North Carolina.

December 16, 1964.

Lee & Allen, Asheville, for plaintiff.

Sanford W. Brown, Asheville, for defendant.

SHARP, Justice.

The questions raised by this appeal are: (1) Was the service of summons and notice had upon defendant in North Carolina invalid? (2) Did the pendency of the South Carolina action between these parties for the same cause abate this action? (3) Should the demurrer ore tenus be sustained? These questions will be discussed and answered seriatim.

(1) Defendant was not immune from service of process when he came into North Carolina to see his child. He did not come into the State as a witness in obedience to a summons, G.S. § 8-68; nor had he been brought into the State by extradition based on a criminal charge of nonsupport, G.S. § 15-79.

With reference to service of process obtained by trickery or artifice, the rule is that if a person is induced by fraud to come within the jurisdiction of a court for the purpose of obtaining service of process on him, the service will be set aside upon timely motion. Economy Electric Co. v. Automatic Electric Power & Light Plant, 185 N.C. 534, 118 S.E. 3; Wyman v. Newhouse, 93 F.2d 313, 115 A.L.R. 460 (2d Cir.) cert. den. 303 U.S. 664, 58 S.Ct. 831, 82 L.Ed. 1122; 14 Am.Jur., Courts § 185 (1938); 23 Am.Jur., Fraud and Deceit § 98 (1939); 42 Am.Jur., Process § 35 (1942).

It is patent that, in order to have him served with summons in this action, plaintiff took advantage of the South Carolina visitation order, which attracted defendant into North Carolina, but the record is untainted with evidence that she decoyed him into the State by any false representation or fraudulent promise. So far as the evidence reveals, she made no representation to him, either express or implied. The Juvenile-Domestic Relations Court—presumably at defendant's insistence—ordered plaintiff to permit him to take the child from her home from noon until 5 :00 p. m. on November 2, 1963. She complied with the order of the court—and arranged to have the sheriff waiting. The service of a writ, otherwise lawful, does not become unlawful because the desire to effect service was the sole motive for lawful acts tending to create the opportunity. Jaster v. Currie, 198 U.S. 144, 25 S.Ct. 614, 49 L.Ed. 988; 42 Am.Jur., Process § 36 (1942). The first question is answered in the negative.

If the manner in which plaintiff secured service upon defendant in this case seems unsporting, perhaps it will appear less so when we note that the Juvenile-Domestic Relations Court of Lexington County had no jurisdiction to award plaintiff either alimony or support for the child. Its judgment was unenforceable. Therefore, in instituting this action in a court of competent jurisdiction, she was not forum-shopping.

(2) The South Carolina court involved is an inferior court of very limited jurisdiction. On March 12, 1963, the Supreme Court of South Carolina in McCullough v. McCullough, 242 S.C. 108, 130 S.E.2d 77, held that the Juvenile and Domestic Relations Court of Lexington County was without jurisdiction in an action instituted by a wife against her husband, on the grounds of desertion, for support for herself and two minor children. The court raised the question of jurisdiction ex mero motu when the husband appealed from an order changing the amount of support which he had initially been directed to pay. The court said:

"We have searched the statute which creates and empowers this court and fail to find anything therein which would vest jurisdiction of the subject matter of this action in that court. The only section of the statute which even mentions support proceedings is Section 15-1311.8 * * *."

Code of S.C. (1962) § 15-1311.8 has to do with adoption proceedings and proceedings under the Uniform Reciprocal Enforcement of Support Act.

Furthermore, at no time since April 12, 1963, has the minor child of the parties been in the State of South Carolina. "Any action as it relates to the custody of a child is in the nature of an in rem proceeding, and the child must be present in the State and within the jurisdiction of a court of competent jurisdiction before such court may render a valid decree awarding its custody." Denny, J. (now C. J.), in Richter v. Harmon, 243 N.C. 373, 377, 90 S.E.2d 744, 747; accord, Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.

Where another action pending between the same parties for the same cause is made the basis of a plea in abatement, the former action must be pending (a) in a court of competent jurisdiction and (b) within this State, in order to bar the second action. McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860; 1 McIntosh, North Carolina Practice and Procedure, § 1236(4) (1956 ed.). There are two reasons, therefore, why defendant's plea in abatement cannot be sustained. The second question is likewise answered in the negative.

(3) The allegations of the complaint are insufficient to support any award of alimony to plaintiff, and the demurrer ore tenus must be sustained with respect thereto. Plaintiff has based her action for alimony without divorce upon the indignities section of G.S. § 50-7, which G.S. § 50-16 incorporates. She is required, therefore, not only to set out with particularity those of her husband's acts which she contends constituted such indignities as to render her condition intolerable and her life burdensome but also to show that those acts were without adequate provocation on her part. Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420; Pollard v. Pollard, 221 N.C. 46, 19 S. E.2d 1; 2 Lee, North Carolina Family Law § 141 (3d ed., 1963). Whether the benefits the courts derive from this exacting rule exceed the burdens it imposes upon both court and pleader is debatable. Too often it so distends pleadings that they strain both patience and belief, yet it is a rule so very old that the years have barnacled it in numberless cases upon our practice. White v. White, 84 N.C. 340; Harrison v. Harrison, 29 N.C. 484.

Although Pennell, J., was, arguendo, correct in holding plaintiff to have alleged sufficiently a cause of action based on indignities committed by defendant prior to March 15, 1963, Coble v. Coble, 55 N.C. 392, 395, yet the complaint avers that after a separation of two weeks, plaintiff returned to defendant and lived with him until April 12, 1963. Cruelty and indignities, like other matrimonial offenses, may be condoned. Gordon v. Gordon, 88 N.C. 45; Lady D'Aguilar v. Baron D'Aguilar, 1 Hagg.Ecc. 773, 162 Eng.Rep. 748 (Ecc.Adm. P. & D. 1794); 1 Lee, op. cit. supra §§ 82, 87. Nothing else appearing, the resumption of marital relations after a separation imports a condonation of previous offenses. Annot., Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107, 133 (1959). Condonation, of course, is forgiveness upon condition; and, if the condition is violated, the original offense is revived. Gordon v. Gordon, supra; Lady D'Aguilar v. Baron D'Aguilar, supra. To establish a breach of condition and revival of former offenses after she returned to defendant, plaintiff alleges:

"(A)lmost immediately the same situation as hereinbefore alleged and set forth became evident again and * * * during this period when both the plaintiff and defendant had pledged themselves to attempt a reconciliation, the said defendant treated this plaintiff with cold and disdainful indifference, never according her any love or affection, and never at any time permitting her to be anything more than a domestic servant in the household. * * *"

Since these allegations neither particularize defendant's alleged acts of misconduct nor attempt to describe plaintiff's preceding behavior, they are not enough to revive the old grounds for relief, even though less may be sufficient to destroy condonation than to found an original suit. Lady D'Aguilar v. Baron D'Aguilar, supra at 781, 162 Eng.Rep. at 753.

Ordinarily, condonation is an affirmative defense to be alleged and proved by the party relying upon it. Blakely v. Blakely, 186 N.C. 351, 119 S.E. 485. Unless allegations of condonation "affirmatively appear from the complaint, the complaint need not allege that complainant has not condoned * * * the misconduct complained of * * *." 27A C.J.S. Divorce § 109 (1959). Where, however, as here, the complaint alleges cohabitation subsequent to the indignities relied upon, it must, in order to survive a demurrer, allege, as well, with the same particularity required in the first instance, the acts constituting and surrounding the breach of forgiveness. The complaint, touching upon plaintiff's claim for alimony, is therefore demurrable for condonation appearing upon its face, revival of the original cause not also sufficiently there appearing. Brooks v. Brooks, 226 N.C. 280, 285, 37 S.E.2d 909, 912.

By specific provisions in the statute, in an action instituted by the wife under G.S. § 50-16, the court may enter orders relating to the support and custody of the children of the marriage irrespective of the rights of the wife and husband between themselves in such proceeding. Accordingly, the judgment of the Superior Court, affirming the order of the Buncombe General County Court, is affirmed insofar as it pertains to the support and custody of the minor child of the parties, but is reversed insofar as it awards alimony.

Affirmed in part;

Reversed in part.