SHIRLEE B. BECKER v. DAVID H. BECKER, 262 N.C. 685

Denny, C.J. Defendant’s first four assignments of error are directed to the refusal of the court below to continue the case. According to the record, summons and verified complaint were served on the defendant on 13 December 1963. The defendant filed answer on 29 January 1964. The calendar on which this case was placed for trial was a three weeks session of civil court. This case was set for trial on Wednesday, 8 April 1964, of the third week of the session, and two weeks before the case was called for trial the plaintiff’s counsel informed defendant’s counsel that the motion to strike would be withdrawn.

The defendant contends he was put to a great disadvantage because the motion to strike was not withdrawn until the call of the case and came as a surprise. This contention is feckless. Defendant’s counsel knew the motion would be withdrawn and had known it for two weeks. Moreover, unquestionably, the court calendar had been prepared and distributed to the members of the Buncombe County Bar some time prior to the beginning of the session, and defendant’s counsel knew when this case was to be called for trial.

As a matter of fact, the defendant amended his answer only in one respect after withdrawing his cross action. Pie simply inserted the name of an alleged correspondent in adultery. The defendant cannot claim the right to a continuance based on his own amendment which did not materially change his allegations of recrimination already pleaded in his answer. An amended pleading at the session the case is called for trial, which raises additional issues of fact, may justify the continuance of the case on motion of the opposing party.

However, such amendment will not ordinarily justify a continuance on motion of the party submitting the amendment. The amendment to the defendant’s answer raised no new issues of fact; therefore, the rule laid down in Dobson v. Railway Co., 129 N.C. 289, 40 S.E. 42, is not applicable. Moreover, in our opinion, G.S. 1-173, upon which the defendant relies, is not applicable to the facts in this case. The plaintiff tried her case on her original complaint which had been filed and served on the defendant on 13 December 1963.

The defendant had filed his answer on 29 January 1964; therefore, the issues had been joined from and after that date. Furthermore, a motion for continuance is addressed to the sound discretion of the trial judge, and in the absence of manifest abuse of such discretion his ruling thereon is not reviewable. Watters v. Parrish, 252 N.C. 787, 115 S.E. 2d 1; Hayes v. Ricard, 251 N.C. 485, 112 S.E. 2d 123; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910. The defendant does not contend there was an abuse of discretion but claims he was entitled to a continuance as a matter of right under G.S. 1-173.

We do not so hold and these assignments of error are overruled. The defendant assigns as error the refusal of the court below to grant defendant a jury trial on plaintiff’s cause of action for divorce, upon motion made after the case was called for trial. G.S. 50-10 was amended by

Chapter 540 of the Session Laws of North Carolina, 1963, by adding the following: “Notwithstanding the above provisions, the right to have the facts determined by a jury shall be deemed to be waived in divorce actions based on two (2) years separation as set forth in G.S. 50-5(4) or 50-6, where defendant has been personally served with summons, or where the defendant has accepted service of summons, whether within or without the State, unless such defendant, or the plaintiff, files a request for a jury trial with the clerk of the court in which the action is pending, prior to the call of the action for trial. “In all divorce actions tried without a jury as in this

section provided the presiding judge shall answer the issues and render judgment thereon.” “A party may waive the right to a jury trial in civil actions by failure to follow the statutory procedure to preserve such right.” Strong’s N. C. Index, Constitutional Law, Volume 1,

Section 4, page 518; Caudle v. Swanson, 248 N.C. 249, 103 S.E. 2d 357; Furniture Co., v. Baron, 243 N.C. 502, 91 S.E. 2d 236; Bartlett v. Hopkins, 235 N.C. 165, 69 S.E. 2d 236; Chesson v. Container Co., 223 N.C. 378, 26 S.E. 2d 904. The mere fact that the defendant decided to withdraw his cross action, which if it had been tried would have been tried by a jury, does not justify his position in demanding a jury for the trial of plaintiff’s cause of action for divorce without complying with the statutory requirements.

Doubtless, defendant knew he was going to withdraw his cross action before the case was called, but he failed to request a jury trial on plaintiff’s cause of action. He never filed a request for a jury trial with the Clerk of the Superior Court of Buncombe County before the case was called for trial as required by G.S. 50-10. This assignment of error is overruled. The defendant further assigns as error the refusal of the court below to allow him to testify as to the adulterous disposition of the plaintiff in support of his allegations of recrimination.

Among other things, it is provided in G.S. 8-56: “* ® * Nothing herein shall render any husband or wife competent or compellable to give any 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; or, in any action or proceeding for or on account of criminal conversation, except that in actions of criminal conversation brought by the husband in which the character of the wife is assailed she shall be a competent witness to testify in refutation of such charges * * Likewise, it is provided in G.S. 50-10 that in a trial pursuant thereto, “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.” In the case of Perkins v.

Perkins, 88 N.C. 41, Ruffin, J., said: “The provision of the statute (Battle’s Revisal,

Chapter 17,

Section 341, now G.S. 8-56) is so pointed and its language so plain- — that in such trials, neither the husband nor the wife shall be a competent witness to prove the adultery of the other, nor shall the admissions of either be received as evidence to prove such fact — as to leave no room for doubt or construction.” The proffered evidence was clearly inadmissible. G.S. 8-56; G.S. 50-10; Knighten v. McClain, 227 N.C. 682, 44 S.E. 2d 79; Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933; McCall v. Galloway, 162 N.C. 353, 78 S.E. 429; Grant v. Mitchell, 156 N.C. 15, 71 S.E. 1087, Ann. Cas. 1912D, 1119.

The defendant sought to introduce evidence to establish fraud in the procurement of the consent judgment entered on 12 December 1961 in the General County Court of Buncombe County. He assigns as error the refusal of the court below to admit such evidence. The ruling of the court below, in our opinion, was correct. It is a well settled principle of law in this jurisdiction that a consent judgment cannot be modified or set aside without the consent of the parties thereto except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action. Holden v.

Holden, 245 N.C. 1, 95 S.E. 2d 118; King v. King, 225 N.C. 639, 35 S.E. 2d 893; Keen v. Parker, 217 N.C. 378, 8 S.E. 2d 209, and cited cases. The plaintiff does not bottom her cause of action for divorce on the above judgment, but merely relies thereon to show when the plaintiff and the defendant entered into an agreement to live separate and apart from each other. Therefore, the defendant is not entitled to have such judgment set aside upon the ground of fraud in its procurement in this action. McIntosh, North Carolina Practice and Procedure, Judgments,

section 1718, at- page 174. This assignment of error is likewise overruled. The defendant admits in his answer that he and the plaintiff lived separate and apart for two years next preceding the institution of this action. In Sears v. Sears, 253 N.C. 415, 117 S.E. 2d 7, the defendant had obtained a divorce from bed and board in the Supreme Court of New York because of the cruel and inhuman treatment by the defendant therein, the plaintiff herein, and the Court ordered the defendant husband to pay permanent support and maintenance.

Thereafter, the defendant husband instituted this action in North Carolina for absolute divorce based on two years separation. Winborne, C.J., speaking for the Court, said: “* * * (I)n Lockhart v. Lockhart, 223 N.C. 559, 27 S.E. 2d 444, this Court held that the effect of a judgment granting a divorce a mensa et thoro was to legalize the separation of the parties which theretofore had been caused by the husband’s actions, and that after two years from the date of such judgment, the husband could proceed to an absolute divorce. See also Pruett v.

Pruett, 247 N.C. 13, 100 S.E. 2d 296. “In fine, the effect of the judgment in Lockhart v. Lockhart, supra, was to legalize the separation of the parties which theretofore had been an abandonment on the part of the plaintiff. He could not thereafter be charged with desertion. “Therefore, the husband is entitled to bring his action for an absolute divorce regardless of fault since the New York judgment in 1952 had the effect of legalizing the separation date, and the wife cannot defend on the ground of recrimination.” Rouse v. Rouse, 258 N.C. 520, 128 S.E. 2d 865; Richardson v.

Richardson, 257 N.C. 705, 127 S.E. 2d 525.

Likewise, in the last cited case, Bobbitt, J., speaking for the Court, said: “Plaintiff and defendant having lived together until their separation on February 29, 1960, and having then separated by mutual consent, defendant cannot attack the legality of their separation from and after February 29, 1960, on account of alleged misconduct while they were living together.” The remaining assignments of error have been expressly waived or abandoned for failure to bring them forward in the brief and argue them as required by Rule 28, Rules of Practice in the Supreme Court, 254 N.C. at page 810.

The judgment of the court below is Affirmed.