North Carolina Mecklenburg County Separation Grounds Alimony Lawyers Attorneys

KENT B. MORRIS v. JEANE JUNKER MORRIS

COURT OF APPEALS OF NORTH CAROLINA

November 27, 1979, Heard in the Court of Appeals

February 5, 1980, Filed

Plaintiff filed an absolute divorce from defendant on grounds of a one year separation of the parties. Defendant admitted the allegations in the complaint and in cross-action; she alleged abandonment by plaintiff and indignities to her person. She prayed that plaintiff's action for absolute divorce be denied and dismissed, and that she be granted a divorce from bed and board and attorney's fees.

She also prayed for a jury trial on all issues. Defendant moved to strike plaintiff's answer and cross-action. In that motion, plaintiff alleged that defendant had instituted a previous action against him in Mecklenburg County for alimony, that the action had been heard and judgment rendered therein for plaintiff, that defendant had appealed from said judgment, and that the appeal was then pending in the Court of Appeals. Plaintiff's motion to strike came on for hearing before Judge Saunders at the Mecklenburg Non-jury Session of District Court on 5 March 1979. Judge Saunders allowed plaintiff's motion to strike, and entered judgment for plaintiff for absolute divorce. Defendant wife appealed the judgment of the Mecklenburg County District Court North Carolina.

Issue:

Whether the trial court erred in not granting the defendant's requestfor jury trial in the divorce action?

Discussion:

The Court observed that in 1963, the General Assembly amended the statutes to allow the trial judge to find the facts in actions for divorce based on the required period of separation of the parties. In 1971, the General Assembly again amended G.S. 50-10 to provide that the right to jury trial in such actions would be deemed waived unless demanded by one of the parties as provided in the Rules of Civil Procedure, and that in actions tried without a jury, "the presiding judge shall answer the issues and render judgment thereon." In 1973, the statute was again amended to allow the necessary facts to be found by either a judge or a jury. Thus, it is clear that although the General Assembly has seen fit over the past two decades to significantly liberalize the divorce laws of our State, to the point where "no-fault" is the established law for divorces based on the separation of the parties, there yet remains as a part of our law the requirement for a jury to determine issues of fact about which there may be no dispute simply because a defendant demands it. It is difficult to see what useful purpose is served for a defendant, in such an action as the one sub judice, to be able to put the opposing party and the State through the time and expense of a trial by jury. The application to G.S. 50-6 divorces of the G.S. 50-10 requirement that the factual allegations supporting the G.S. 50-6 divorce must be deemed denied requires a finding of the necessary facts. While it remains sound public policy to not allow the granting of such divorces on the pleadings, it would, nevertheless, appear that it would make good jurisprudential sense to clearly remove G.S. 50-6 divorce from the more cumbersome jury procedure and provide that all such cases beheard by the judge without a jury.

As for the instant case, we are bound under the present law to hold that the trial court erred in failing to grant defendant's request for a trial by jury, since her right was properly preserved under G.S. 1A-1, Rules 38 and 39.

Conclusion:

Based on the above facts this Court affirms the order of the trial court striking defendant's further answer and defense and cross-action and the Court reversed the trial court's denial of a jury trial and remanded for a new trial.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Mecklenburg County Separation Grounds Alimony Lawyers Attorneys

By: Atchuthan Sriskandarajah

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