North Carolina Divorce Abandonment Constructive Willful Cruelty Alimony Post-Separation Psychiatric Emotional Lawyers Attorneys

by admin on October 1, 2010

CORNELIA ELLINWOOD v. EVERETT H. ELLINWOOD, JR.
COURT OF APPEALS OF NORTH CAROLINA

The husband, a psychiatrist who worked long hours advancing his career, spent little time with his wife or three children. The husband did not assist the wife in rearing the children and did not attend church with his family except once a year. The husband routinely left the wife a checklist of tasks to accomplish each day and expected her to host numerous dinner parties.

While his son was hospitalized for psychiatric problems, the husband visited him twice a month. The wife unsuccessfully asked the husband to leave the home or move into a separate bedroom prior to filing a complaint for divorce from bed and board. Three months later, the husband left the home. On the basis of constructive abandonment, the wife successfully sought alimony. Defendant husband appealed an order of the District Court of Durham County (North Carolina), which awarded plaintiff wife alimony and attorney fees under N.C. Gen. Stat. § 50-16.2 due to the husband’s constructive abandonment of his wife and family.

ISSUES:

Can Constructive abandonment occur without evidence of physical cruelty or wilful failure to provide monetary support?

DISCUSSION:

Here, plaintiff alleges no affirmative acts of physical cruelty nor does she allege a willful failure to provide adequate monetary support. Plaintiff alleges as a basis for a finding of constructive abandonment that the defendant has constructively abandoned the plaintiff in that . . . he did not participate in any meaningful way in the home life of the plaintiff as husband and wife or as father of the minor children and that he had generally withdrawn his love, affection and concern for his wife, and the children born of the marriage to the extent that the plaintiff had been forced to rear the children almost as a single parent with little input, no cooperation and no emotional support from the defendant.    In order to receive alimony a dependent spouse must first show one of the ten grounds for alimony listed in G.S. 50-16.2. Abandonment, one of these ten grounds, occurs when “[t]he supporting spouse abandons the dependent spouse.” G.S. 50-16.2(4). While the statutes neither explicitly address nor define constructive abandonment, Courts have long recognized that abandonment can occur under a variety of circumstances and, consequently, each case must be looked at according to its specific facts. One set of circumstances encompasses the theory of constructive abandonment.  Constructive abandonment by the defaulting spouse may consist of either affirmative act of cruelty or of a willful failure, as by a willful failure to provide adequate support.  The permissible bases are broader and encompass cruelty by other than mere physical cruelty and willful failure to fulfill spousal or parental responsibilities beyond merely providing adequate economic support. There remains, as a basis for a finding of constructive abandonment, a level of willful spousal misconduct which rises above the normal and sometimes commonplace problems associated with marriages involving busy professionals.

Here, the trial court made findings of fact regarding Dr. Ellinwood’s failure to attend his daughter’s baccalaureate or her graduation exercises from high school. These events occurred in the spring of 1986, well after the parties’ separation in August 1984. The court also found as fact that Dr. Ellinwood had only visited his son at college once and had yet to visit his daughter at her school. These are also post-separation events. Since the trial court improperly considered evidence of these post-separation events, the Court ruled that it must reverse the alimony order and remand with instructions that the trial court reconsider the plaintiff’s allegations based only on evidence which precedes the date of the separation.

JUDGMENT:

The court reversed the district court’s judgment for the wife and remanded the cause for further consistent proceedings.

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


About the Author:
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.  The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law.  The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia.  The Maryland offices are in Montgomery County & Baltimore.  The Massachusetts offices are in Boston & Cambridge.  The New York office is in New York City.  The North Carolina Office is in Charlotte, NC which is in Mecklenburg County.  The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
 
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