MARY LEE ADAMS v. JAMES ERNEST ADAMS, 262 N.C. 556

Bobbitt, J. Defendant’s Assignment of Error #4 asserts in general terms that the court’s charge did not comply with G.S. 1-180.

Defendant’s Assignment of Error #5 asserts “the Court erred in failing to give a complete definition of 'abandonment’ as applied to the facts in this case, and wholly ignored the defendant’s evidence which tended to prove that the plaintiff ordered the defendant to leave the home, and the Court failed to state such evidence, and failed to explain to the jury the law pertaining to this evidence as it bore on the issue in the case of abandonment.” While Assignment of Error #4, considered alone, is broadside, Assignment of Error #5 may be and will be treated as a particularization of Assignment of Error #4.

Defendant’s contention (AE 5) is based solely on the testimony of Mrs. Ruth Cook. Mrs. Cook testified: There was “just a drive” between her home (502 East Tremont Avenue) and the Adams home, the houses being 20-25 feet apart; that her kitchen was next to the Adams kitchen, “just a little angling”; and that, although next door neighbors for fourteen and a half years, she had “never said anything or spoken to that lady,” the plaintiff. In her original testimony, Mrs.

Cook stated that, sometime during defendant’s said four-day stay, she was in her kitchen and overheard a conversation between plaintiff and defendant in their kitchen; and that during the course of their conversation she heard plaintiff tell defendant she “had to have money,” that he “had to give her money,” and “what the Judge would do and what her lawyer would do to him.” She testified she did not hear any curse words or profanity and that “(t)he demands for money, about courts, and the lawyers” was “just about all” she could remember. Later, Mrs.

Cook was recalled and. testified: “Since I was on the witness stand yesterday I recollect some statements I heard made the week of the 22nd of April. They were discussing money. She wanted money and he didn’t have any. It was during this time she made the statement, ‘Well, hell, get out.’ ” We do not understand Mrs.

Cook’s supplemental testimony to mean that she overheard any full conversation between plaintiff and defendant but that, at sometime during a conversation in which plaintiff said she wanted money and defendant said he did not have any, she heard plaintiff say, “Well, hell, get out.” Presumably, plaintiff and defendant were in the kitchen when the statement attributed to her by Mrs. Cook was made. Possibly, plaintiff was telling defendant to get out of the kitchen.

Be that as it may, defendant did not testify he left because plaintiff ordered him to do so or that plaintiff told him, “Well, hell, get out,” but that he left solely for the reasons indicated in our preliminary statement. It was neither required nor appropriate for the judge to instruct the jury as to the law that would be applicable if plaintiff had ordered defendant to leave and defendant had left for that reason when defendant did not so testify or contend. The issue was clear and simple.

Did the defendant leave without just cause, justification or excuse, or did he leave because of provocative and abusive conduct of plaintiff of the nature indicated in our preliminary statement? No error is assigned to the court’s instructions as given. Moreover, a careful examination of the charge leaves the impression that defendant was not prejudiced by deficiencies, if any, in the court’s instructions. Defendant’s Assignment of Error #3 asserts that the court erred in excluding testimony of Mrs. Cook as to what occurred prior to April 22, 1963. The excluded testimony of Mrs.

Cook, summarized, was as follows: During the fourteen and one-half years prior to April 22, 1963, she (Mrs. Cook) had heard “rows” between plaintiff and defendant in which plaintiff was demanding money and in which defendant was insisting plaintiff had taken all he had; that on some unidentified occasion she heard plaintiff say to defendant, “to hell, get out then”; that the statements by plaintiff to defendant were made “in a scream”; and that plaintiff had “the shrillest, screechingest voice” Mrs. Cook had ever heard. Whether the exclusion of said portion of Mrs.

Cook’s testimony was prejudicial to defendant need not be determined. Certainly, its vagueness as to time and circumstances renders it of doubtful probative value. Be that as it may, the exclusion thereof was proper. In urging the competency of the excluded portion of Mrs. Cook’s testimony, defendant cites decisions of this Court relating to condonation. “Condonation in law is the conditional forgiveness by a husband or wife of a breach of marital duty by the other, whereby the forgiving party is precluded, so long as the condition is observed, from claiming redress for the breach so condoned.” S. v.

Manon, 204 N.C. 52, 167 S.E. 493. Condonation is a specific affirmative defense to be alleged and proved by one who is charged with a breach of marital duty. Phillips v. Phillips, 223 N.C. 276, 25 S.E. 2d 848. For full discussion, see Lee, North Carolina Family Law, Volume 1, § 87. Legal principles applicable to condonation are not relevant. Here, the complaint is the only pleading that alleges a breach of marital duty, to wit, defendant’s alleged abandonment of plaintiff without just cause, justification or excuse. Defendant’s answer consists solely of a general denial.

It contains no allegations to the effect the separation prior to April 22nd was caused by wrongful conduct on the part of plaintiff. Moreover, defendant in his testimony seeks to justify his leaving plaintiff on Friday, April 26th, on the basis of what occurred during the four-day period. Defendant’s remaining assignments of error are formal and do not require discussion. No error.