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Edwards v. Edwards

Filed: October 16, 1979.

WADE LAPSLEY EDWARDS
v.
JO MEREDITH SHELTON EDWARDS



Appeal by defendant from Kieger, Judge. Order entered 9 October 1978 in District Court, Forsyth County. Heard in the Court of Appeals 24 August 1979.

Wells, Judge. Judges Clark and Erwin concur.

Wells

Defendant assigns as error the trial court's refusal to grant her oral motion to amend her pleadings. Under G.S. 1A-1, Rule 15(a), after the time permitted for unrestricted unilateral amendment of pleadings has expired, a party "may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." While the burden is on the party objecting to the amendment to show that he would be prejudiced thereby, Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977), a motion under Rule 15(a) is addressed to the sound discretion of the trial judge and the denial of such motion is not reviewable absent a clear showing of an abuse of discretion. Garage v. Holston, 40 N.C. App. 400, 253 S.E.2d 7 (1979). Since the record before us fails to indicate the content of defendant's proposed amendment and the circumstances surrounding the court's denial of her motion, we cannot say that the trial court has abused its discretion.

Defendant argues that the trial court erred in dismissing defendant's first and second defenses and her third defense and counterclaim. Defendant argues that her first defense, alleging plaintiff committed adultery after as well as before the separation of the parties, constitutes a valid defense to an action for absolute divorce based on a one year separation.

Prior to 1977, it was the settled law of this State that recrimination was available as a defense in bar of an action for absolute divorce based on the separation of the parties.

This jurisdiction recognizes the doctrine of recrimination, which 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.

Hicks v. Hicks, 275 N.C. 370, 373, 167 S.E.2d 761, 763 (1969). See also, Harrington v. Harrington, 286 N.C. 260, 210 S.E.2d 190 (1974); Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471 (1943); Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943); 1 Lee, N.C. Family Law ยง 88, p. 338 (1963).

The 1977 General Assembly amended G.S. 50-6 to specifically deny recrimination as a defense to an action for absolute divorce based on the separation of the parties.

Section 1. G.S. 50-6, as it appears in the 1976 Replacement of Volume 2A, is amended by adding the following sentences at the end thereof:

"A plea of res judicata or of recrimination with respect to any provision of G.S. 50-5 shall not be a bar to either party obtaining a divorce on this ground. . . ."

Sec. 2. This act shall become effective August 1, 1977, and shall not ...


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