Murray v. Murray , 296 N.C. 405 ( 1979 )

250 S.E.2d 276 (1979) 296 N.C. 405

Mildred P. MURRAY
v.
Albert L. MURRAY.

No. 104.

Supreme Court of North Carolina.

January 4, 1979.

Lindsey, Schrimsher, Erwin, Bernhardt & Hewitt, P.A. by Lawrence W. Hewitt, Charlotte, for plaintiff.

Henderson, Henderson & Shuford by David H. Henderson and David L. Henderson, Charlotte, for defendant.

COPELAND, Justice.

The sole question for our consideration is whether the trial court erred in denying plaintiff's motions for a directed verdict at the end of all the evidence and for judgment notwithstanding the verdict. These motions can be considered together as they are controlled by the same standards and rules. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). After reviewing the evidence, we conclude that Judge Johnson was correct in leaving the decision of this case to the jury.

The rule in this State is that a directed verdict cannot be granted for the party with the burden of proof when his right to recover depends on the credibility of his witnesses. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). However, there may be rare occasions in which credibility seems compelled as a matter of law. Id. This case does not fall within that category.

The plaintiff has initiated this action for alimony under G.S. 50-16.2(4); therefore, she must show that she has been abandoned by the defendant, who she alleges is the supporting spouse. "One spouse abandons the other, within the meaning of [G.S. 50-16.2(4)], where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it." Panhorst v. Panhorst, 277 N.C. 664, 670-71, 178 S.E.2d 387, 392 (1971). Thus, the plaintiff has the burden of proving, inter alia, that defendant left without her consent.

The plaintiff testified that she had not concurred in defendant's decision to leave home for good. Defendant, on the other hand, stated that the two of them had discussed separation numerous times and that when he left in June of 1976, he thought they had agreed to split up. Although there was no evidence that plaintiff expressly agreed to the separation at the precise moment defendant left, that fact does not necessarily preclude a finding of consent. This concept was eloquently stated in defendant's brief.

"[S]eparation by consent is rarely accomplished by lightning stroke. It is an erosion, a crumbling, a series of burst hopes and faded joys. There comes a culmination of small wars, and mutual surrenders, not to each other, but to the institution. . . . Consent, may indeed take days, or months or years."

The evidence presented at trial compel the conclusion that whether separation was consented to by both parties is a question of fact for the jury. In passing on a motion for directed verdict or judgment notwithstanding the verdict, the evidence is to be taken in the light most favorable to the non-moving party, and he is entitled to all reasonable inferences that can be drawn from it. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973).

The plaintiff argues that Smith v. Burleson, 9 N.C.App. 611, 177 S.E.2d 451 (1970), and other decisions from that court following Burleson create an "exception" to the rules set forth in Cutts v. Casey, supra. We note in passing that no decision of the Court of Appeals can carve out an "exception" to a rule of law laid down by this Court. See State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968) for some background on North Carolina's appellate system.

Furthermore, Burleson does not set forth an exception to the Cutts v. Casey rule that a motion for directed verdict cannot be granted in favor of the party with the burden of proof if the credibility of his witnesses affects his right to recover. Rather, the Court of Appeals' decision stands for the proposition that a directed verdict can be granted for the party with the burden of proof when his right to judgment is established by the non-movant's evidence. This Court has since qualified that holding. "Discrepancies and contradictions in the evidence, even though such occur in the evidence offered on behalf of [the non-movant], are to be resolved by the jury, not by the court." Bowen v. Constructors Equipment Rental Co., 283 N.C. 395, 405, 196 S.E.2d 789, 797 (1973). Therefore, credibility still is almost exclusively a question for the members of the jury. In this case, they have spoken.

For the reasons stated above, the decision of the Court of Appeals is

AFFIRMED.

BROCK, J., did not participate in this decision.

SHARP, Chief Justice dissents for the reasons stated in the dissenting opinion of Webb, J., Murray v. Murray, 37 N.C.App. 406, 409, 246 S.E.2d 52, 55 (1978).