Smithdeal v. Smithdeal , 206 N.C. 397 ( 1934 )

Stacy, C. J.

When an action for divorce is brought by either party under chapter 72, Public Laws, 1931, as amended by chapter 163, Public Laws, 1933, Michie’s Code, 1659(a), on the ground of separation of husband and wife for two years, is it necessary that the jurisdictional affidavit, required by C. S., 1661, contain the averment that the facts set forth in the complaint, as grounds for divorce, have existed to the knowledge of the plaintiff at least six months prior to the filing of the complaint? The answer is, No.

The statute under which the plaintiff is proceeding provides that marriages may be dissolved on application of either party “if and when there has been a separation of husband and wife . . . for two years.”

C. S., 1661, provides that the plaintiff in an action for divorce shall file with his or her complaint an affidavit setting forth, among other things, that the grounds for divorce have existed to his or her knowledge at least six months prior to the filing of the complaint. But this section was amended by chapter 93, Public Laws, 1925, as follows: “Provided, however, that if the cause for divorce is five years separation, then it shall not be necessary to set forth in the affidavit that the grounds for divorce have existed at least six months prior to the filing of the complaint, it being the purpose of the act to permit a divorce after separation of five yeárs and without waiting an additional six months for filing the complaint.”

At the time of this amendment, five years’ separation was required as ground for an absolute divorce. C. S., 1659. The question then arises: Does this proviso, eliminating the necessity of waiting six months after the expiration of the requisite period of separation, when the ground for divorce is that of separation, still apply with the reduction in time from five to two years?

This reduction was made in two ways: First, by chapter 397, Public Laws, 1931, amending C. S., 1659, which brought forward the substance of the proviso added to C. S., 1661, in 1925; and, second, by chapter 72, Public Laws, 1931, as amended by chapter 163, Public Laws, 1933, Michie’s Code, 1659(a), which is an independent act, giving either party the right to sue, and omits any reference to the jurisdictional affidavit.

It is the contention of the defendant that, since the amendment to C. S., 1659, specifically brought forward the substance of the 1925 amendment to C. S., 1661, and the independent act, chapter 72, Public Laws, 1931, as amended by chapter 163, Public Laws, 1933, Michie’s Code, 1659(a), giving either party the right to sue, omits any reference to the jurisdictional affidavit, the intention of the Legislature is manifest, that in actions under this latter statute, an additional period of six months following the two years separation, shall elapse before the filing of the complaint.

If tbe defendant’s interpretation of tbe statutes be correct, tbe result is, that tbe required length of separation under O. S., 1659, as amended, is two years, while tbe required length of separation under Micbie’s Code, 1659(a), is two years and six months. Nichols v. Nichols, 128 N. C., 108, 38 S. E., 296; Carnes v. Carnes, 204 N. C., 636, 169 S. E., 222.

We think tbe General Assembly intended to make tbe period of separation tbe same under both statutes. For this intention, reference is bad to tbe declaration of policy in tbe proviso of 1925, “it being tbe purpose of tbe act to permit a divorce after a separation of five (later reduced to two) years without waiting an additional six months for filing tbe complaint,” and to tbe use of tbe expression “if and when” in Micbie’s Code, 1659(a), tbe words “and when” not appearing in O. S., 1659. Furthermore, tbe reason for tbe six months requirement in tbe affidavit does not exist when separation is tbe ground for tbe divorce. Taylor v. White, 160 N. C., 38, 75 S. E., 941. Tbe plaintiff is entitled to judgment on tbe verdict.

Reversed.