Harmon v. Harmon , 245 N.C. 83 ( 1956 )

95 S.E.2d 355 (1956) 245 N.C. 83

Harold D. HARMON
v.
Mary Prime HARMON.

No. 246.

Supreme Court of North Carolina.

November 28, 1956.

Carpenter & Webb, Charles F. Coira, Jr., Charlotte, for defendant-appellant.

John H. Small, Charlotte, for plaintiff-appellee.

DENNY, Justice.

The defendant's 15th assignment of error is based on her first exception which assigns as error the refusal of the court below to dismiss the action in addition to setting aside the judgment entered on 26th April 1955. The court below, in its discretion, instead of dismissing the action, ordered that service be completed in accordance with the provisions of G.S. § 1-99.2, and enlarged the time for answering.

A judge of the superior court, in a civil action, may "in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order may enlarge the time." G.S. § 1-152; Aldridge v. Greensboro Fire Insurance Co., 194 N.C. 683, 140 S.E. 706; Roberts v. Merritt, 189 N.C. 194, 126 S.E. 513; McNair v. Yarboro, 186 N.C. 111, 118 S.E. 913.

Ordinarily, where a judge is vested with discretion, his doing or refusing to do the act in question is not reviewable upon appeal. Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522; United American Free-Will Baptist Church, Northeast Conference v. United American Free-Will Baptist Church, Northwest Conference, 158 N.C. 564, 74 S.E. 14; Wilmington v. McDonald, 133 N.C. 548, 45 S.E. 864.

The defendant prevailed on her motion to set aside the judgment on the ground that service had not been completed or obtained on her at the time the judgment complained of was entered. Hence, she had nothing to appeal from at that time except the contention, wholly without merit, that the court could not thereafter get service on her without dismissing the action and requiring the plaintiff to reinstitute it. Even so, the question the defendant seeks to have us determine with respect to the failure to dismiss the action is now moot, since she has made a general appearance, filed a verified answer, set up a plea in bar and testified in her own behalf in the trial below.

G.S. § 1-103 provides that, "A voluntary appearance of a defendant is equivalent to personal service of the summons upon him." The filing of an answer is equivalent to a general appearance, and a general appearance waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons. Harris v. Bennett, 160 N.C. 339, 76 S.E. 217; Ashford v. Davis, 185 N.C. 89, 116 S.E. 162; Burton v. Smith, 191 N.C. 599, 132 S.E. 605; Abbitt v. Gregory, 195 N.C. 203, 141 S.E. 587; Town of Asheboro v. Miller, 220 N.C. 298, 17 S.E.2d 105; In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R. 2d 818. This assignment of error is overruled.

The most serious question on this appeal is presented by the defendant's exception No. 16, on which she bases her assignment of error No. 3, challenging the correctness of the following portion of his Honor's charge to the jury: "The court charges you as a matter of law that during the period that the judgment of absolute divorce was in full force and effect and until it was set aside on February 10, 1956, the relations between the plaintiff in this action and Betty Curtis would not constitute adultery, unless you find from this evidence and by its greater weight that during that interval of time the plaintiff knew that his divorce decree was invalid, and that his continuing to live with Betty Curtis was done in bad faith and at a time when he knew or had sufficient ground or reasonable ground to know that he did not have a valid divorce and that his marriage ceremony on July 23, 1955, was ineffective and did not constitute a marriage between himself and Betty Curtis."

The textbook writers and the courts are in considerable disagreement as to whether cohabitation, under circumstances such as this case presents, does or does not constitute adultery. There seems to be unanimity among the authorities, however, that cohabitation pursuant to the second marriage does constitute adultery if the parties to the second marriage obtained the divorce decree through collusion and in bad faith or by fraud. State v. Williams, 220 N.C. 445, 17 S.E.2d 769, reversed 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279; Id., 222 N.C. 609, 24 S.E.2d 256; Id., 224 N.C. 183, 29 S.E.2d 744, affirmed 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577; State v. Whitcomb, 52 Iowa 85, 2 N.W. 970; State v. Watson, 20 R.I. 354, 39 A. 193, 78 Am. St. Rep. 871, affirmed in 179 U.S. 679, 21 S. Ct. 915, 45 L. Ed. 383.

The authorities also hold that where one party to a marriage obtains a divorce by fraud and marries another who knows nothing about the fraud and enters into the marriage in good faith, such innocent person is not guilty of any wrongdoing. Or, if one who is married represents that he is a single person and enters into a second marriage without obtaining a divorce, he may be prosecuted for having lived with the second spouse. State v. Cutshall, 109 N.C. 764, 14 S.E. 107, 108, 26 Am. St. Rep. 599.

In the last cited case, Clark, J., later Chief Justice, quoted with approval from the case of Alonzo v. State, 15 White & W. 378, as follows: "`While it is true that to constitute adultery there must be a joint physical act, it is certainly not true that there must be a joint criminal intent. * * While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty, the other innocent * * *. So, if one of the parties was mistaken as to a matter of fact, after exercising due care to ascertain the truth in relation to such fact, which fact, had it been true, would have rendered the alleged criminal act legal and innocent, the party so acting under such mistake of fact would be innocent of crime.'"

In 17 Am.Jur., Divorce and Separation, section 463, page 380, it is said: "Cohabitation pursuant to the second marriage after the annulment constitutes adultery," citing State v. Watson, supra and State v. Whitcomb, supra. (Emphasis added.)

We find in 27 C.J.S., Divorce, § 56 b (3), page 599, the following: "Since an absolute divorce dissolves the marriage tie, * * * subsequent intercourse between a former spouse and a third person does not constitute adultery, provided a final decree has been rendered, and no fraud was practiced to obtain it. A subsequent reversal of the decree does not render the cohabitation under a second marriage before the reversal adulterous," citing Gordon v. Gordon, 141 Ill. 160, 30 N.E. 446, 21 L.R.A. 387, 33 Am. St. Rep. 294; Bailey v. Bailey, 45 Hun 278, affirmed 142 N.Y. 632, 37 N.E. 566.

Likewise, in this same volume, § 67, page 626, it is said: "Where a wife, after having obtained a divorce, marries and cohabits with her second husband before her first husband moves to vacate the decree, and the decree is vacated, the wife's act in cohabitating with her second husband does not constitute adultery such as to preclude her from obtaining a divorce," citing Chisholm v. Chisholm, 105 Fla. 402, 141 So. 302.

In the last cited case, the wife, after obtaining a divorce decree, married and cohabited with another, but separated from the second husband before her first husband moved to vacate the original decree. The original decree was vacated. The court held in the second trial for divorce from her first husband that her cohabitation with her second husband may technically be regarded as bigamy but did not constitute adultery such as would preclude her from obtaining a divorce.

In the case of Bailey v. Bailey, supra, the plaintiff instituted an action for divorce against his wife on the grounds of her adultery. A decree granting the plaintiff an absolute divorce was entered on 5th February 1886, which decree expressly gave him the right to remarry. From the judgment entered the defendant appealed. Plaintiff, without awaiting disposition of the appeal, married another woman and thereafter cohabitated with her until 17th September 1886, when he heard that the court had decided to reverse the judgment. The court entered the order of reversal on 20th September 1886. The judgment was set aside because the question of the sanity of the wife at the time the action was instituted was raised. Her acts of adultery were proved beyond question. The court said, however, "The court certainly had full and complete jurisdiction over the parties and the subject-matter of the action, and there is not the slightest suggestion of any wrong by the plaintiff in obtaining the judgment." And further, "* * * wherever the law invites an act, which would otherwise be unlawful, whether it be by express general provisions or through a valid judgment which purports to express the law of the particular case, the acts of parties in pursuance thereof are not illegal, and especially is connubial cohabitation, under such circumstances, free from the charge of adultery."

In Meyer v. Meyer, 343 Ill.App. 554, 99 N.E.2d 706, it appears that on 28th December 1942, Hester S. Meyer filed a complaint for divorce in the Circuit Court of Cook County against her husband, Arthur Meyer, on the ground of desertion. She alleged in her complaint that she was a resident of Cook County and the State of Illinois. The defendant filed an answer and a cross-complaint for divorce also on the ground of desertion. On 18th Jan. 1943 the husband was granted an absolute divorce. Thereafter, on 1st May 1943, Arthur Meyer, relying on the validity of the divorce decree, married Constance Arts. A child was born to Meyer and Constance Arts on 9th June 1945. On 11th July 1944, Hester S. Meyer filed a petition attacking the divorce on the ground that the court lacked jurisdiction for the reason that neither she nor Arthur Meyer was a citizen of Cook County at the time the action was instituted and, therefore, she requested that the divorce decree be expunged. Arthur Meyer moved in the lower court to dismiss the petition for want of equity, which was allowed. Mrs. Meyer appealed. In the opinion filed 11th April 1946, the court reversed the order and remanded the cause for a new trial with specific instructions. Meyer v. Meyer, 328 Ill.App. 408, 66 N.E.2d 457, 459. There the court said that, "The only question presented is whether plaintiff made out a prima facie case on the proposition that the decree of divorce was null and void for want of jurisdiction, her position being that neither of the parties was a resident of Cook County at the time the divorce proceeding was instituted, as required by statute."

Finally, after another appeal, reported in 333 Ill.App. 450, 77 N.E.2d 556, an order was entered in the Circuit Court on 1st April 1948, expunging the decree of divorce. Thereafter, it appears new pleadings were filed in the pending action. Plaintiff set up the cohabitation of the defendant with Constance Arts in bar of the relief sought by him in the cross-complaint. The court found the plaintiff, Hester S. Meyer, guilty of habitual drunkenness for the space of more than two years prior to the filing of the cross-complaint and granted the defendant, Arthur Meyer, an absolute divorce. The court said with respect to the second marriage of the defendant, "That Arthur Meyer's cohabitation up to February 17, 1948, under his marriage of May 1, 1943 to Constance Arts, was not adultery or bigamy, constituting a defense to his complaint for divorce; * * *." See Smith v. Smith, 64 Iowa 682, 21 N.W. 137; Pratt v. Pratt, 157 Mass. 503, 32 N.E. 747, 21 L.R.A. 97.

No one contends that the bonds of the marriage between the plaintiff and the defendant were dissolved by the judgment entered on 26th April 1954. The real question here, however, is this: Do the facts as revealed on this record warrant the conclusion that the plaintiff's conduct in marrying Betty Curtis and living with her as his wife until the day before the decree of divorce entered on 26th April 1954 was set aside, constitutes adultery? We would answer this question in the affirmative without hesitation if the record disclosed any evidence of bad faith, collusion or fraud on the part of the plaintiff, Harold D. Harmon, in connection with the procurement of the divorce decree entered on 26th April 1954. State v. Williams, supra. But there is no such evidence. He disclosed to the court in his affidavit the correct address of the defendant, Mary Prime Harmon. He employed competent counsel to represent him. He did what the law requires of a party when service must be obtained by publication. Therefore, in our opinion, it would be unfair and unjust to penalize this plaintiff when there is no evidence of intentional wrong on his part. Consequently, from the facts disclosed on this record, the charge of the court below will be upheld.

A careful examination of the record discloses that sixteen of the defendant's exceptions either have not been brought forward and assigned as error, or no reason or argument is stated, or authorities cited in support of the assignments based thereon. Hence, these exceptions and assignments of error will be taken as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562. In our opinion, the remaining exceptions and assignments of error present no question of substantial merit that would justify us in disturbing the result of the trial below.

In the trial below we find no error.

No error.

JOHNSON, J., not sitting.