Spencer v. Spencer , 61 N.C. App. 535 ( 1983 )

301 S.E.2d 411 (1983)

Dwight Lee SPENCER
v.
Paulette Martin SPENCER.

No. 8218DC167.

Court of Appeals of North Carolina.

April 5, 1983.

McNairy, Clifford & Clendenin by Locke T. Clifford and Michael R. Nash, Greensboro, for plaintiff-appellant.

Brooks, Pierce, McLendon, Humphrey & Leonard by L.P. McLendon, Jr., and Gerard M. Chapman, Greensboro, for defendant-appellee.

BECTON, Judge.

I

The husband excepts and assigns error to numerous evidentiary rulings of the trial court; however, we will address only the dispositive issues. For the reasons that follow, the husband is entitled to a new trial.

The husband's first, second, and seventh arguments relate to the trial court's admission of testimony concerning the husband's adulterous activities during the parties' marriage. After the wife presented evidence relating to her counterclaim, the trial court entered a directed verdict on the issue of adultery because of the wife's condonation; however, the trial court ruled that evidence of adultery would be admissible "for such impact as it may have toward the question of indignities." The wife then testified about the husband's various adulterous relationships, saying that her husband had told her about these affairs. The husband also was cross-examined about his affairs with other women. The testimony disclosed that the parties were living in Charlotte when the wife learned that the husband had had an affair while they were living in Atlanta. The parties then sought marriage counseling from their minister in Charlotte, and during these sessions the husband admitted to having had other affairs in Atlanta. Subsequently, at the wife's behest during marital discussions at home, the husband informed the wife of the details of his extramarital excursions, in answer to specific questions asked of him.

The husband contends the trial court erred in admitting all evidence probative of his adultery because both he and his wife were incompetent witnesses under N.C.Gen. Stat. § 50-10 (1981) and N.C.Gen.Stat. § 8-56 (1981) and because the information revealed during counseling with their minister was privileged under G.S. § 8-56 and N.C.Gen.Stat. § 8-53.2 (1981). We agree with these arguments.

N.C.Gen.Stat. § 8-56 provides in pertinent part: "Nothing ... shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery...." The relevant portion of G.S. § 50-10 provides: "On such trial neither the husband nor wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either party be received as evidence to prove such fact." These two statutes have been construed together by our Supreme Court to mean "that neither the husband nor the wife is a competent witness in any action inter se to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery, and may not be compelled to give such evidence." Wright v. Wright, 281 N.C. 159, 167, 188 S.E.2d 317, 322 (1972).

Testimony by a spouse concerning his or her relationship with another party has been held admissible by this Court in cases in which there is no clear implication of intercourse. See, Traywick v. Traywick, 28 N.C.App. 291, 221 S.E.2d 85 (1976). In an action for alimony without divorce, we have ruled a wife's testimony that her husband spent a great deal of time with another woman was admissible for proving indignities rendering the wife's condition intolerable and life burdensome. Id. Testimony by the offended party of his or her spouse's adulterous activities may be admissible to prove indignities in some cases, as when an adulterous wife boasts of her extramarital affairs to taunt the cuckold with his trusting ignorance of her deceit. In such a situation, the very manner of the revelation itself could rise to the level of an indignity, rendering the wronged party's condition intolerable and his life burdensome. However, on the facts of the present case, the husband's revelation to his wife of his past indiscretions did not amount to an indignity. The record discloses that the husband admitted the adulterous affairs in counseling sessions with the parties' minister in an effort to make an honest confession and make a new start in the marriage, and later in answer to his wife's request for further information about these affairs. The evidence does not indicate he was mocking his wife with her past ignorance of his infedility. Thus, because the evidence about adultery in the present case cannot be admitted to prove indignities, it is not protected and is barred by G.S. § 8-56 and G.S. § 50-10, since neither the husband nor the wife were competent to testify about the husband's adultery.

This reasoning also renders inadmissible, under the husband's seventh argument, the testimony of Ed Roy, that the husband admitted to Roy that he had had affairs with other women. The husband contends that the trial court erred in admitting Roy's hearsay testimony under the hearsay rule exception allowing the admission of a party opponent. We agree with the husband because Ed Roy received his information from the husband himself and because G.S. § 50-10 clearly provides that no admissions from either party are competent to prove adultery.

Finally, the husband contends the trial court erred in admitting testimony from both parties about the husband's disclosure of his extramarital affairs in front of his wife during marriage counseling sessions with a minister. G.S. § 8-56 provides: "No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage." Under G.S. § 8-53.2, the statute rendering confidential communications between the clergy and communicants, the minister himself was not competent to testify about the affairs because the husband had communicated the information to him in the minister's professional capacity. The minister, as a third party, did not destroy the confidential nature of the admissions the husband made during marriage counseling that he had been unfaithful to his wife. On the contrary, the very purpose of marriage counseling—to attempt reconciliation of the parties in a troubled marriage—reinforces the confidential nature of communications made during these sessions.

Because of these errors in admitting the testimony from both parties and from Ed Roy about the husband's adultery, a new trial must be ordered.

II

Although the husband took exception to Judge Lowe's order granting temporary alimony, support and attorney's fees pendente lite, he failed to bring forth any assignments of error thereon or argue those matters in his brief. Thus, pursuant to Rule 28(b)(3) of the North Carolina Rules of Appellate Procedure, this argument is deemed abandoned.

The husband brought forward other assignments of error which we do not reach because they may not recur at the subsequent trial.

New trial.

HEDRICK and WEBB, JJ., concur.