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North Carolina Divorce Adultery Abandon Recrimination Lawyers Attorneys

by

Atchuthan Sriskandarajah

JANE PRITCHETT HARRINGTON v. GEORGE FAULKNER HARRINGTON

SUPREME COURT OF NORTH CAROLINA

FACTS:

The husband and wife were married and had two children. The wife left the home taking the children, and the husband brought an action for custody. The trial court awarded

custody

to the wife, and the wife brought a divorce action based on separation for one year. The husband asserted abandonment and adultery as defenses, and the wife filed a motion to strike the defenses. The trial court granted the motion, and the appellate court affirmed. The husband sought review.

ISSUES:

The issue here is whether the Court of Appeals erred in affirming the order of the District Court striking his defenses of adultery and willful abandonment

DISCUSSION:

The court held that the husband’s defenses were valid affirmative defenses under the doctrine of recrimination. The doctrine of recrimination allows a defendant in a divorce action to set up a defense in bar of the plaintiff’s action that plaintiff was guilty of misconduct which in itself would be a ground for divorce.

Defenses

under the doctrine of recrimination are deemed controverted and the burden to establish such affirmative defense is on the defendant. The doctrine of recrimination provides in effect that if both parties have a right to a divorce, neither of the parties has. Also, the judgment of the wife’s abandonment of the husband in the custody action did not constitute a judicial separation so as to bar the husband from the use of his defenses because the general assembly did not intend to reward her for abandoning the husband by allowing her to obtain a divorce based on one year’s separation. Either party may sue for a divorce or for dissolution of the bonds of matrimony, if and when the husband and wife have lived separate and apart for one year. However, it is not to be supposed the general assembly intended to authorize one spouse willfully or wrongfully to abandon the other for a period of two years and then reward the faithless spouse a divorce for the wrong committed, in the face of a plea in bar based on such wrong. Nor is it to be ascribed as the legislative intent that one spouse may drive the other from their home for a period of two years, without any cause or excuse, and then obtain a divorce solely upon the ground of such separation created by the complainant’s own dereliction. Out of unilateral wrongs arise rights in favor of the wronged, but not in favor of the wrongdoer. One who plants a domestic thorn bush or thistle need not expect to gather grapes or figs from it.

JUDGMENT:

The court reversed the allowance of the husband’s motion and remanded to the appellate court with instructions to remand to the trial court.

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

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in Virginia, Maryland, Massachusetts, New York,

North Carolina

& California. The firm handles criminal/traffic defense, family law, immigration & bankruptcy cases.

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