JACK V. SMITH,
Plaintiff
v
.
LINDA SUE SMITH,
Defendant
Pitts, Hay & Hugenschmidt, P.A., by James J. Hugenschmidt, for
plaintiff-appellee.
Robert E. Riddle, P.A., by Diane K. McDonald, for defendant-
appellant.
CAMPBELL, Judge.
Defendant appeals a judgment granting plaintiff a decree of
absolute divorce. We affirm.
Plaintiff and defendant were married to each other on 3 May
1986. From this marriage one minor child, Kelley Regina Smith, was
born on 23 November 1986.
While living in Florida in 1996, the parties began having
marital difficulties. These difficulties continued through October
of 1998, at which time the parties ended their sexual relationship.
Eventually, in early December of 1998, plaintiff told defendant
that he was unhappy in the marriage and moved from the master
bedroom to the guest bedroom at the other end of the marital home.
On 21 January 1999, business reasons prompted plaintiff tomove from the parties' Florida residence to Buncombe County, North
Carolina. Defendant initially remained in Florida so that the
minor child could finish the sixth grade and the parties could sell
the marital home. Although the whole family planned to relocate to
North Carolina by the summer of 1999, plaintiff told the minor
child that he would not be living with them when she and defendant
relocated. The minor child never discussed this conversation with
defendant.
Plaintiff began living with his niece when he moved to North
Carolina. By February of 1999, plaintiff's niece became aware of
his intention to separate from defendant. Plaintiff also told his
niece that he had not informed defendant of his intention to
divorce her.
Defendant made at least two trips to Buncombe County in early
1999 to look for a house to purchase with plaintiff. Defendant
stayed in a hotel during these trips, but plaintiff did not stay
with her. (Plaintiff also returned to Florida twice during the
Spring of 1999, but stayed in the marital home's guest bedroom.)
The parties eventually purchased a house, which was deeded to them
as tenants by the entirety. Defendant and the minor child took up
residence in the new home in July of 1999. Plaintiff did not move
in with them. Instead, plaintiff remained with his niece because
he claimed she was afraid of her neighbors. Plaintiff never spent
a night in the new home nor did he resume a marital relationship
with defendant after she relocated to North Carolina. Defendant learned of plaintiff's intention to end their
marriage in September of 1999. On 7 April 2000, plaintiff filed a
complaint for absolute divorce pursuant to Section 50-6 of the
North Carolina General Statutes. In the complaint, plaintiff
alleged that he and defendant “separated January 21, 1999, and have
lived continuously separate and apart since that date.” After
being granted an extension of time, defendant filed an answer on 16
May 2000 that included a Rule 12(b)(6) motion to dismiss
plaintiff's claim for failure to state a claim upon which relief
can be granted. Additionally, defendant counterclaimed alleging
that their separation did not occur until 25 September 1999 and
requesting that plaintiff's action therefore be dismissed.
Plaintiff timely replied and denied defendant's allegation.
The trial for absolute divorce was heard before Judge Peter L.
Roda on 28 August 2000. Prior to the entry of judgment, defendant
amended her answer on 24 September 2000 and asked to resume her
maiden name. On 16 October 2000, the court entered a judgment
concluding that although “the Plaintiff moved from the marital home
in January 1999 with the intent to obtain a divorce from the
Defendant [and] that the Defendant did not know of the Plaintiff's
intent to separate until September 1999[,]” plaintiff was entitled
to an absolute divorce from defendant. Furthermore, the court
concluded that defendant could resume the use of her maiden name.
Defendant appeals this judgment.
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