Kennette Frazier PANHORST
v.
George M. PANHORST, Jr.
No. 60.
Supreme Court of North Carolina.
January 20, 1971.*391 Thomas Walton and William J. Cocke, Ashville, for plaintiff appellant.
Robert E. Riddle, Asheville, for defendant appellee.
LAKE, Justice.
The jury was instructed, "If you answer the first issue NO, and thereby find that the defendant did not abandon the plaintiff, as the Court has instructed you with reference to that issue, then you would not come to consider the second issue * * *." (Emphasis added.) That is, in that event, the jury would not consider the issue of whether such abandonment was or was not without adequate cause or provocation on the part of the plaintiff.
The verdict on the first issue was reached in the light of this instruction:
"Abandonment, within the meaning of the law, means that there is a separation of the parties one from the other. It also means that the separation is without the consent of the party from whom the separation is had and that the separation is without the intention of renewing the marital relationship and that the separation is willful, that is without adequate cause, excuse or justification.
* * * * * *
"Ordinarily, * * * the spouse who separates or leaves is not justified in leaving the other spouse unless the conduct of the spouse who is left is such as would likely render it impossible for the withdrawing spouse to continue the marital relationship with safety, health and self-respect, and so, members of the jury, the Court instructs you that when you come to consider the first issue, the burden of proof, as the Court has told you, is upon the plaintiff upon this issue and when you come to consider this first issue the Court instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that in October, 1968, the defendant separated himself from the plaintiff and that this separation was without the consent of the plaintiff and that this separation was without the intention on the part of the defendant of renewing the marital relationship and that this separation was brought about without the existence of circumstances which would justify the defendant in withdrawing, that is, was absent such circumstances as would make it impossible for the withdrawing spouse, the defendant, to continue the marital relations with safety, health and self-respect; if the plaintiff has satisfied you of each of these elements from the evidence and by its greater weight, then it would be your duty to answer the first issue YES.
"On the other hand, * * * if the plaintiff has failed to satisfy you from the evidence by its greater weight as to each of these elements, then it would be your duty to answer the first issue NO."
The plaintiff assigned this instruction as error and also assigned as error that the court had failed to declare and explain the law arising upon the evidence, as required under G.S. § 1-180. (See, Rule 51(a), Rules of Civil Procedure.) Both of these assignments of error were allowed by the Superior Court in ordering a new trial. The Court of Appeals reversed on the ground that the plaintiff did not set out in her exception and assignment of error her contention as to what the court should have charged.
It is alleged in the complaint and admitted in the answer that the plaintiff and defendant were married and lived together until 9 October 1968, when the defendant left the home. The defendant's own testimony makes it clear that he left with no intent to return, though the plaintiff begged him not to do so. The sole question presented by the pleadings and the evidence related to whether he was legally justified in leaving and thus was absolved from the duty of paying alimony pursuant to G.S. § 50-16.2(4). The plaintiff's testimony, if believed by the jury, is sufficient *392 to establish that the cause of the condition, which the defendant assigns as the only reason for leaving, was her affliction with a physical ailment for which she was and had been for a long time undergoing medical treatment. The defendant's testimony was to the effect that he, when leaving, was aware that she had some physical difficulty for which she was undergoing medical treatment. Nowhere in the charge, except in revewing the testimony, is there any specific reference to the physical condition or health of the plaintiff. The jury was not given any direction as to the bearing of the plaintiff's condition, if the jury believed it to be as the plaintiff had testified, upon the legal right of the defendant to leave her as he admits that he did. In this there was error requiring a new trial as ordered by the Superior Court.
"It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence." Strong, N.C.Index 2d, Trial, § 33. Rule 51(a) of the Rules of Civil Procedure, formerly G.S. § 1-180, "requires the judge `to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.' 53 Am.Jur., Trial, section 509." Western Conference of Original Free Will Baptists of North Carolina v. Miles, etc., 259 N.C. 1, 9, 129 S.E.2d 600, 605; Lewis v. Watson, 229 N.C. 20, 23, 47 S.E.2d 484.
G.S. § 50-16.2 provides that a dependent spouse is entitled to an order for alimony when "(4) the supporting spouse abandons the dependent spouse." The statute does not define abandonment. One spouse abandons the other, within the meaning of this statute, 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. See, Richardson v. Richardson, 268 N.C. 538, 151 S.E.2d 12. One spouse may abandon the other without physically leaving the home. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; McDowell v. McDowell, 243 N.C. 286, 90 S.E.2d 544; Blanchard v. Blanchard, 226 N.C. 152, 36 S.E.2d 919. In that event, the physical departure of the other spouse from the home is not an abandonment by that spouse. The constructive abandonment by the defaulting spouse may consist of either affirmative acts of cruelty or of a wilful failure, as by a wilful failure to provide adequate support. McDowell v. McDowell, supra; Blanchard v. Blanchard, supra. There is, however, no wilful failure, and so no constructive abandonment, where the defect of which the departing spouse complains is due to the illness or physical disability of the remaining spouse and his or her consequent inability to act.
In an action by a wife for alimony without divorce, G.S. § 50-16.2, like its predecessor, does not preclude the husband, who has left the home, from proving as a defense that it was actually the wife who separated herself from him, though she did not leave the home. Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923. If, however, the failure of the wife, asserted by the husband as justification for his departure from the home, was not wilful but was due to her health and physical condition, such failure would not constitute a constructive abandonment of the husband by the wife and would not be justification for his departure from the home. The jury should have been so instructed.
The judgment of the Court of Appeals is hereby reversed, and the matter is remanded to that court for the entry of a judgment by it further remanding it to the Superior Court for entry therein of a judgment granting the plaintiff a new trial on the ground of the above mentioned error in the charge of the judge of the General County Court.
Reversed and remanded.