Dechkovskaia v. Dechkovskaia

NO. COA13-766

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

ANJELIKA DECHKOVSKAIA,

Plaintiff,

v. Orange County

No. 11-CVD-0472

ALEX DECHKOVSKAIA,

(Male’s Name Spelled Deshkovski)

Defendant.

Appeal by defendant from Orders entered 26 July 2012 by Judge

Beverly A. Scarlett and 3 December 2012 by Judge Joseph M. Buckner

in District Court, Orange County. Heard in the Court of Appeals

12 December 2013.

Sandlin & Davidian, PA, by Lisa Kamarchik, for plaintiff-

appellee.

Wait Law, P.L.L.C., by John L. Wait, for defendant-appellant.

STROUD, Judge.

Alex Deshkovski1 (“defendant”) appeals from an equitable

distribution and alimony order entered 26 July 2012 distributing

property the trial court classified as marital and awarding

1 There is some confusion in the record regarding how to spell

defendant’s last name—the order lists his name both as Dechkovskaia

and Deshkovski, but in various pleadings defendant has spelled his

name Deshkovski, so we will use that spelling.

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Anjelika Dechkovskaia (“plaintiff”) $3,500 per month in alimony

for twelve years. Defendant also appeals from an order entered 3

December 2012 denying his motion for a new trial and for a stay of

proceedings.

I. Background

Plaintiff and defendant were married on 7 July 1990 in the

Soviet Union, in what is now Belarus, separated on or about 25

February 2011, and divorced on 30 April 2012. They have two

children—one born September 1991 and a minor child born December

2004. They are both highly educated and both work in scientific

fields—defendant as a professor and lecturer, and plaintiff as a

researcher. Defendant moved to the United States in 1996 to pursue

his higher education, achieving a master’s degree and two

doctorates. Within a year, plaintiff followed defendant to the

United States and, in 1997, began working as a scientific research

assistant and lab technician.

On 4 March 2011, plaintiff filed a complaint in Orange County

requesting permanent custody of the parties’ minor child, child

support, postseparation support, alimony, and equitable

distribution. Plaintiff alleged in the complaint that defendant

had committed marital misconduct by “engaging in indignities which

have rendered the condition of the plaintiff intolerable and life

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burdensome in that defendant has controlled the plaintiff and the

plaintiff’s life throughout most of the marriage.” Defendant

denied the allegation, but did not allege that plaintiff had

herself engaged in marital misconduct. The trial court awarded

sole legal and physical custody of the parties’ minor child to

plaintiff and visitation for defendant by order entered 15 February

2012.

After a hearing on 30 April 2012, at which plaintiff was

represented by counsel and defendant appeared pro se, the trial

court resolved the equitable distribution and alimony issues by

order entered 25 July 2012. The trial court classified various

pieces of property acquired by the parties as marital property,

including two houses titled in the name of the minor child. The

trial court valued the parties’ total estate at $591,702.00, found

that an equal distribution of property would be equitable, and

distributed the marital property accordingly. The trial court

also found that defendant was a supporting spouse, that plaintiff

was a dependent spouse, that defendant had committed marital

misconduct by offering indignities to plaintiff during the

marriage, and that defendant’s post-separation conduct

corroborated its finding of marital misconduct prior to

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separation. The trial court awarded plaintiff $3,500 per month in

alimony for twelve years and attorney’s fees.

On 13 August 2012, defendant, now represented by counsel,

filed a motion for a new trial and stay of execution under Rules

59 and 62 of the North Carolina Rules of Civil Procedure. The trial

court denied defendant’s motion by order entered 3 December 2012.

Defendant filed notice of appeal on 2 January 2013 both from the

order denying his post-trial motion and the order addressing

equitable distribution and alimony.2

II. Equitable Distribution

Defendant first argues that the trial court erred in its

valuation of the marital estate because it included two houses in

the estate not owned by either party on the date of separation. We

agree.

[T]he standard of review on appeal from a

judgment entered after a non-jury trial is

whether there is competent evidence to support

the trial court’s findings of fact and whether

the findings support the conclusions of law

and ensuing judgment. The trial court’s

findings of fact are binding on appeal as long

as competent evidence supports them, despite

the existence of evidence to the contrary.

2 Although defendant appealed from both orders, he makes no

argument on appeal regarding the order denying his post-trial

motions. Therefore, any argument concerning that order has been

abandoned. N.C.R. App. P. 28(a).

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The trial court’s findings need only be

supported by substantial evidence to be

binding on appeal. We have defined substantial

evidence as such relevant evidence as a

reasonable mind might accept as adequate to

support a conclusion. As to the actual

distribution ordered by the trial court, when

reviewing an equitable distribution order, the

standard of review is limited to a

determination of whether there was a clear

abuse of discretion. A trial court may be

reversed for abuse of discretion only upon a

showing that its actions are manifestly

unsupported by reason.

Peltzer v. Peltzer, ___ N.C. App. ___, ___, 732 S.E.2d 357, 359-

60 (citations, quotation marks, and brackets omitted), disc. rev.

denied, 366 N.C. 417, 735 S.E.2d 186 (2012).

The trial court determined that two houses purchased by the

parties during the marriage were marital property despite being

titled in the name of the parties’ minor child. On the date of

separation, neither party owned the houses at issue. The trial

court specifically found that both properties were titled “in the

minor child’s name upon acquisition.” Nevertheless, plaintiff now

argues that even if the houses were titled in the minor child’s

name, defendant had an equitable interest in the property, such as

a constructive trust, with the minor child as trustee.3

3 We note that the property was apparently acquired some time prior

to the child’s seventh birthday.

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“In an equitable distribution proceeding, only marital

property is subject to distribution by the court. G.S. 50–20(a).”

Lawrence v. Lawrence, 100 N.C. App. 1, 16, 394 S.E.2d 267, 275

(1990). For purposes of N.C. Gen. Stat. § 50-20, “marital property”

“means all real and personal property acquired by either spouse or

both spouses during the course of the marriage and before the date

of the separation of the parties, and presently owned . . . .”

N.C. Gen. Stat. § 50-20(b)(1) (2011). Based upon the unchallenged

finding by the trial court, it appears that the houses were titled

to the minor child when they were purchased, and it is uncontested

that only the parties’ minor child held title to the two contested

houses on the date of separation.

First, we must consider whether this issue has been preserved

for our review. We conclude that it has. As discussed below, the

trial court must join the title owner, in this case the minor

child, as a necessary party to the action in order to adjudicate

ownership of the two houses. “Otherwise the trial court would not

have jurisdiction to enter an order affecting the title to that

property.” Upchurch v. Upchurch, 122 N.C. App. 172, 176, 468 S.E.2d

61, 64, disc. rev. denied, 343 N.C. 517, 472 S.E.2d 26 (1996). Our

review of this issue has not been waived by defendant’s failure to

raise it below. See Kor Xiong v. Marks, 193 N.C. App. 644, 652,

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668 S.E.2d 594, 600 (2008) (“An appellate court has the power to

inquire into jurisdiction in a case before it at any time . . .

.”).

To the extent that plaintiff claims that the minor child holds

the properties only in some sort of constructive trust for the

marital estate, that issue cannot be determined unless the minor

child—who holds title to the property—is made a party to the

action. See Upchurch, 122 N.C. App. at 176, 468 S.E.2d at 63-64

(discussing the classification of property allegedly held in trust

for the marital estate and holding that “when a third party holds

legal title to property which is claimed to be marital property,

that third party is a necessary party to the equitable distribution

proceeding, with their participation limited to the issue of the

ownership of that property.”). Where, as here, a minor child’s

property interests are adverse to that of his parent, the trial

court must appoint a guardian ad litem to represent his interests.4

Kohler v. Kohler, 21 N.C. App. 339, 341, 204 S.E.2d 177, 178 (1974)

(concluding that “an infant must appear by guardian or guardian ad

4 Here, the trial court did appoint a guardian ad litem, but the

order appointing the guardian specifically limited his duties to

investigation of custodial issues and to file a report (“GAL

report”) addressing the parties’ treatment of each other and the

minor child, not to represent the minor’s property interests. The

GAL’s report indicates that he considered only the issues as

directed by the trial court’s order.

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litem” to determine his property interests); Irvin v. Harris, 189

N.C. 465, 468, 127 S.E. 529, 531 (1925) (observing that the better

practice to determine property rights when the parent’s interests

are not identical to that of the minor child owner is to appoint

a guardian ad litem). Without the presence of the minor as a party

to the action, represented by a guardian ad litem or next friend,

the trial court cannot divest him of his ownership interest in the

real property. See Dorton v. Dorton, 77 N.C. App. 667, 676, 336

S.E.2d 415, 421 (1985) (“Defendant’s mother was not a party to

this action, and the trial court cannot deprive her of rights as

a creditor without affording her the due process rights to notice

and an opportunity to be heard.”); Lawrence, 100 N.C. App. at 16,

394 S.E.2d at 274 (holding that the trial court could not order

the minor children of the divorcing parties to pay certain taxes

when they are not parties to the action); Parker v. Moore, 263

N.C. 89, 90-91, 138 S.E.2d 821, 822 (1964) (“Before funds belonging

to infants and incompetents may be taken from them, the law

requires that they be represented by guardian, guardian ad litem,

or next friend as the situation may require.”). Moreover, once

the minor child is made a party to the action, if the trial court

were to determine that the houses were held in a constructive trust

created during the marriage, it must make appropriate findings to

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that effect based on clear and convincing evidence. Glaspy v.

Glaspy, 143 N.C. App. 435, 441, 545 S.E.2d 782, 786 (2001). No

such findings have been made here. Therefore, the trial court

lacked authority to classify the two houses as martial property,

to include them in the valuation of the marital estate, and to

distribute them to defendant.

Defendant also challenges the trial court’s finding that the

parties had stipulated that their marital residence had a net value

of $210,000. He contends, and plaintiff concedes, that they had

actually stipulated that the marital residence was worth $205,000.

The $5,000 difference appears to be simply a typographical error,

and de minimis at best, given that the trial court found the total

marital estate to be worth $591,702. See Cohoon v. Cooper, 186

N.C. 26, 28, 118 S.E. 834, 835 (1923) (declaring that an error of

95 cents out of a $663 verdict would be de minimis). Nevertheless,

since we must remand on the other equitable distribution issue,

the trial court should also correct this finding on remand.

To determine ownership of the two houses, the trial court

must join the minor child as a party and appoint a guardian ad

litem to represent his property interests. Because it failed to do

so here, it had no authority to classify the houses as marital

property and distribute them as such. Additionally, it made no

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finding that the houses were held in constructive trust for the

martial estate. Although the findings of fact also do not reveal

the parties’ reasons, if any, for vesting title to real estate in

a young child, the trial court on remand may also consider, as

appropriate and if raised by the parties, whether an unequal

distribution of the marital property may be equitable under N.C.

Gen. Stat. § 50-20(c). Therefore, we must vacate the equitable

distribution order and remand for further proceedings. See Boone

v. Rogers, 210 N.C. App. 269, 272, 708 S.E.2d 103, 106 (2011)

(vacating judgment where the trial court failed to join all

necessary parties); Balawejder v. Balawejder, ___ N.C. App. ___,

___, 721 S.E.2d 679, 691 (2011) (vacating order entered without

jurisdiction).

III. Alimony

Defendant next argues that the trial court abused its

discretion in awarding plaintiff $3,500 per month in alimony and

that its findings relating to marital misconduct are unsupported

by competent evidence. Defendant does not otherwise challenge the

appropriateness of the alimony award or the adequacy of the trial

court’s findings. Nor does defendant challenge the amount or

duration of the alimony award on the basis that it is not supported

by the evidence as to the parties’ incomes, needs, and expenses.

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Therefore, we deem any such arguments abandoned. N.C.R. App. P.

28(a). It is uncontested that plaintiff is a dependent spouse,

that defendant is the supporting spouse, and that plaintiff is

entitled to alimony. Yet it does appear from the findings that

the trial court considered the marital misconduct as a factor in

establishing the amount and term of alimony. The only disagreement

concerns whether the trial court’s findings on the marital

misconduct factor were supported by competent evidence.

Decisions regarding the amount of alimony are

left to the sound discretion of the trial

judge and will not be disturbed on appeal

unless there has been a manifest abuse of that

discretion. When the trial court sits without

a jury, the standard of review on appeal is

whether there was competent evidence to

support the trial court’s findings of fact and

whether its conclusions of law were proper in

light of such facts. An abuse of discretion

has occurred if the decision is manifestly

unsupported by reason or one so arbitrary that

it could not have been the result of a reasoned

decision.

Kelly v. Kelly, ___ N.C. App. ___, ___, 747 S.E.2d 268, 272-73

(2013) (citations and quotation marks omitted).

One of the factors that a trial court must take into account

in awarding alimony, when relevant, is marital misconduct. N.C.

Gen. Stat. § 50-16.3A(b)(1) (2011). Marital misconduct includes

“[i]ndignities rendering the condition of the other spouse

intolerable and life burdensome” during the marriage and on or

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before the date of separation. N.C. Gen. Stat. § 50-16.1A(3)(f)

(2011).

Our courts have declined to specifically

define “indignities,” preferring instead to

examine the facts on a case by case basis.

Indignities consist of a course of conduct or

repeated treatment over a period of time

including behavior such as unmerited reproach,

studied neglect, abusive language, and other

manifestations of settled hate and

estrangement.

Evans v. Evans, 169 N.C. App. 358, 363-64, 610 S.E.2d 264, 269

(2005) (citations and quotation marks omitted).5

The trial court found that defendant had engaged in marital

misconduct by offering indignities to plaintiff. Specifically, the

trial court found that defendant had:

a. Refused to live with Plaintiff and the

children in the marital home separate

and apart from his mother;

b. Refused to allow Plaintiff and the

children to associate with others who are

not Russian;

c. Controlled the food eaten by Plaintiff

and the children. Consistently telling

Plaintiff and the children American food

was bad for them and would not let them

eat at public places.

5 See also Barwick v. Barwick, 228 N.C. 109, 112, 44 S.E.2d 597,

599 (1947) (noting the difficulty of creating a clear definition

of indignities); Traywick v. Traywick, 28 N.C. App. 291, 295, 221

S.E.2d 85, 88 (1976) (observing that indignities must consist of

a course of conduct, “repeated and persisted in over a period of

time.” (citation and quotation marks omitted)).

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d. Refused to allow the Parties’ minor son

to attend public school resulting in the

Plaintiff receiving letters from the

Durham County District Attorney’s office

pursuant to the truancy laws of this

State. As a result, Plaintiff sought and

obtained an emergency order which ordered

the minor child attend school.

Additionally, the trial court found that “Defendant has controlled

all the finances during the marriage without giving Plaintiff

access to the bank accounts or PINs for the accounts,” that

“Defendant has engaged in parental alienation prior to the date of

separation and after the date of separation,” and that defendant’s

actions had been intentional and malicious.6

The trial court further found that plaintiff had suffered

emotional abuse from defendant’s control and his attempts to make

plaintiff and their children reliant upon him by isolating them

from the larger community. Finally, it found that defendant’s

post-separation conduct corroborated its finding that defendant

had subjected plaintiff to indignities during the marriage, as

permitted by N.C. Gen. Stat. § 50-16.3A(b)(1).

6 The trial court included these findings in its section on post-

separation conduct, but taken in context, the plain language of

the findings indicates that the trial court found that defendant

had engaged in this conduct prior to separation.

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Defendant argues that these findings are unsupported by the

evidence. First, we note that defendant concedes that several of

the challenged findings may be supported by the GAL report, but

argues that the report was inadmissible for purposes of alimony.

Defendant did not object to the trial court’s consideration of

this report in considering alimony, so any objection thereto has

not been preserved. N.C.R. App. P. 10(a)(1).

The GAL report does in fact fully support all of the trial

court’s relevant findings and supports its ultimate finding that

defendant offered indignities to plaintiff. It paints a picture

of defendant as controlling and verbally abusive, and describes a

pattern of isolating plaintiff and the parties’ children from

broader society.7 This type of overwhelming control and attempted

isolation supports the trial court’s findings on indignities,

especially considering that plaintiff was a relatively recent

immigrant to this country. See Barwick, 228 N.C. at 112, 44 S.E.2d

at 599 (noting that indignities are not specifically defined in

part because “[t]he station in life, the temperament, state of

health, habits and feelings” of the persons concerned can be quite

varied). Moreover, despite defendant’s arguments to the contrary,

7 We are only describing the GAL report in general terms because

it remains under seal by stipulation of the parties and order of

the trial court.

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the findings show that these indignities were part of a long-

standing course of conduct and not an isolated incident. Therefore,

we hold that there was evidence to support the trial court’s

finding of marital misconduct by defendant.

Defendant further argues that the trial court failed to find

that the indignities he offered to plaintiff were “without adequate

provocation.” Defendant has not alleged that plaintiff provoked

the indignities found by the trial court, nor even argued on appeal

that there was evidence which could support such a finding. Indeed,

the argument that a spouse—of either sex—could legally justify

emotional or verbal abuse of the nature found by the trial court

by some sort of “provocation” strains credulity, at least based

upon modern sensibilities and values.8 N.C. Gen. Stat. § 50-16.1A

does not mention the word “provocation” and we have found no case

decided under that statute requiring that the trial court

explicitly find an absence of provocation to find that one of the

spouses had offered indignities to the other. It is not entirely

clear that such a finding is required at all, although as we will

discuss below, there is case law to support this argument.

8 Such justification was accepted by our Supreme Court as early as

the 1800s and as recently as 1955, as we will discuss more fully

below.

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Many of the old cases discussing indignities under the former

statutes on fault-based divorce and divorce from bed and board did

require a very specific factual allegation that there was no

provocation for the indignities offered. Although the words

“without provocation” have been repeated and cited since the early

1800s in North Carolina and they continue to be used, an

examination of the old cases where the phrase originated reveals

that these cases are based not only on antiquated beliefs about

the roles of husband and wife, but also upon specific statutes and

rules of pleading which existed at that time but have long since

been changed by amendments to the relevant substantive statutes

and adoption of the North Carolina Rules of Civil Procedure.

One early and enlightening example is Joyner v. Joyner, 59

N.C. (6 Jones Eq.) 322 (1862). The wife brought a claim against

the husband for divorce from bed and board and alimony and was

awarded alimony pendente lite, from which the husband appealed.

Joyner, 59 N.C. (6 Jones Eq.) at 322. The wife alleged that the

husband had

manifested great coarseness and brutality,

“and even inflicted the most severe corporal

punishment. This he did on two different

occasions, once with a horse-whip, and once

with a switch, leaving several bruises on her

person.” “He used towards her abusive and

insulting language, accused her of carrying

away articles of property from his premises to

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her daughter by a former husband; refused to

let said child live with her; has frequently

at night, after she had retired, driven her

from bed, saying that it was not hers, and

that she should not sleep upon it. He has also

forbade her sitting down to his table in

company with his family,” and that “by such

like acts of violence and indignity has forced

her to leave his house, and that she is now

residing with her friends and relatives,

having no means of support for herself and an

infant son born within the four past weeks.”

Id. She further alleged that during her entire marriage to

defendant she had “been a dutiful, faithful and affectionate wife.”

Id.

The Supreme Court first addressed the specific requirements

of the statute regarding the grounds upon which divorces may be

granted and the pleading requirements for these grounds, noting

that

as a check or restraint on applications for

divorces, and to guard against abuses, it is

provided that the cause or ground on which the

divorce is asked for shall be set forth in the

petition “particularly and specially.” It is

settled by the decisions of this Court that

this provision of the statute must be strictly

observed, and the cause or causes for which

the divorce is prayed must be set forth so

“particularly and specially,” as to enable the

Court to see on the face of the petition, that

if the facts alleged are true the divorce

ought to be granted . . . .

Id. at 323.

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At that time, “[b]y the rules of pleading in actions at the

common law, every allegation of fact, [had to] be accompanied by

an allegation of ‘time and place.’” Id. at 324. Yet the Supreme

Court held that the wife’s claim was not defeated by her failure

to allege “time and place” of her physical abuse, since those facts

were not “material.” Id.9 Instead, the wife’s fatal pleading error

was that she failed to allege what she had done to induce the

husband to beat her—apparently based upon the unstated assumption

that she clearly did something, and the relevant question would be

whether what she did justified the husband’s actions. Id. The

Supreme Court held that she must allege

the circumstances under which the blow with

the horse-whip and the blows with the switch

were given; for instance, what was the conduct

of the petitioner; what had she done, or said

to induce such violence on the part of the

husband? . . . . [T]here was an obvious

necessity for some explanation, and the cause

of divorce could not be set forth

“particularly and specially,” without stating

the circumstances which gave rise to the

alleged grievances.

Id.

9 The reason they were not material is not—as we today might think—

because there simply is no proper time or place to horse-whip your

wife, but because she did not allege some time or place-sensitive

abuse, such as that she was pregnant while he was beating her, or

that he had beat her in a public place. Id.

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The Court explained that such “discipline” would be justified

in certain circumstances for two reasons. The first reason is the

husband’s role as set forth in Genesis 3:16: “Thy desire shall be

to thy husband, and he shall rule over thee.” Id. at 325. The Court

reasoned that “It follows that the law gives the husband power to

use such a degree of force as is necessary to make the wife behave

herself and know her place.” Id. Second, the Court noted that the

husband is legally responsible for the wife’s behavior “under the

principles of the common law,” noting that a husband is responsible

to pay damages if “a wife slanders or assaults and beats a

neighbor” and that a wife is not responsible for commission of “a

criminal offense, less than felony, in the presence of her

husband.” Id. The Court also noted that the wife “cannot make a

will disposing of her land” and “cannot sell her land without a

privy examination, separate and apart from her husband.” Id. For

these reasons, the Court concluded that the law must give “this

power to the husband over the person of the wife, and has adopted

proper safe-guards to prevent an abuse of it.” Id.

The Supreme Court then helpfully discussed some hypothetical

situations in which a husband might be justified in horse-whipping

his wife:

It is sufficient for our purpose to state that

there may be circumstances which will

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mitigate, excuse, and so far justify the

husband in striking the wife “with a horse-

whip on one occasion and with a switch on

another, leaving several bruises on the

person,” so as not to give her a right to

abandon him and claim to be divorced. For

instance: suppose a husband comes home and

his wife abuses him in the strongest terms—

calls him a scoundrel, and repeatedly

expresses a wish that he was dead and in

torment! and being thus provoked in the furor

brevis, he strikes her with the horse-whip,

which he happens to have in his hands, but is

afterwards willing to apologise, and expresses

regret for having struck her: or suppose a man

and his wife get into a discussion and have a

difference of opinion as to a matter of fact,

she becomes furious and gives way to her

temper, so far as to tell him he lies, and

upon being admonished not to repeat the word,

nevertheless does so, and the husband taking

up a switch, tells her if she repeat it again,

he will strike her, and after this notice, she

again repeats the insulting words, and he

thereupon strikes her several blows; these are

cases, in which, in our opinion, the

circumstances attending the act, and giving

rise to it, so far justify the conduct of the

husband as to take from the wife any ground of

divorce for that cause, and authorise the

Court to dismiss her petition, with the

admonition, “if you will amend your manners,

you may expect better treatment;” see Shelford

on Divorce. So that there are circumstances,

under which a husband may strike his wife with

a horse-whip, or may strike her several times

with a switch, so hard as to leave marks on

her person, and these acts do not furnish

sufficient ground for a divorce.

Id. at 325-26.

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Thus the Supreme Court held that mere verbal statements by

the wife—calling her husband a “scoundrel” or “liar” or wishing

him dead—would legally justify his striking her with a horsewhip

(if he then apologizes) or striking her “several times with a

switch, so hard as to leave marks on her person.” Id.10

N.C. Gen. Stat. § 50-16.1A(3)(f) does not mention lack of

provocation as an element of “indignities.” It simply states that

one form of marital misconduct consists of “[i]ndignities

rendering the condition of the other spouse intolerable and life

burdensome.” N.C. Gen. Stat. § 50-16.1A(3)(f). Yet it is also

true that the definition of indignities under N.C. Gen. Stat. §

50-16.1A(2)(f) is the same as it is under N.C. Gen. Stat. § 50-7,

and as it was under the repealed § 50-16.1 and the repealed § 50-

16, for which the courts of this state have required an allegation

10Just a few years later, in State v. Oliver, 70 N.C. 60 (1874),

a criminal case, the Supreme Court rejected the prior cases which

allowed a husband to whip his wife “provided he used a switch no

larger than his thumb,” stating that this “is not law in North

Carolina. Indeed, the Courts have advanced from that barbarism

until they have reached the position, that the husband has no right

to chastise his wife, under any circumstances.” Oliver, 70 N.C. at

61. Yet the Court still recognized that not all physical abuse

would be worthy of intervention by the courts: “But from motives

of public policy,—in order to preserve the sanctity of the domestic

circle, the Courts will not listen to trivial complaints. If no

permanent injury has been inflicted, nor malice, cruelty nor

dangerous violence shown by the husband, it is better to draw the

curtain, shut out the public gaze, and leave the parties to forget

and forgive.” Id. at 61-62.

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that the indignities were offered without provocation. See, e.g.,

Puett v. Puett, 75 N.C. App. 554, 557, 331 S.E.2d 287, 290 (1985),

Vandiver v. Vandiver, 50 N.C. App. 319, 328, 274 S.E.2d 243, 249

(1981), and Cushing v. Cushing, 263 N.C. 181, 187, 139 S.E.2d 217,

222 (1964). Indeed, this same language can be found in every

version of the North Carolina divorce and alimony statutes from

1814 onward. See 2 Laws of the State of North Carolina 1292, 1294

(Raleigh, Henry Potter 1821). The requirement of a lack of

provocation has simply been a judicial gloss on this simple

language, added generations ago in cases like Joyner and repeated

over the years, usually without any consideration of its origins.

In considering how this ancient rule applies to the modern

alimony statute, we cannot ignore the substantial changes in

procedural law, substantive family law, or “the vast changes in

the status of woman—the extension of her rights and correlative

duties—whereby a wife’s legal submission to her husband has been

wholly wiped out, not only in the English-speaking world generally

but emphatically so in this country.” State v. Stroud, 147 N.C.

App. 549, 560, 557 S.E.2d 544, 551 (2001) (quoting United States

v. Dege, 364 U.S. 51, 54, 4 L.Ed.2d 1563, 1565 (1960)), cert.

denied, 356 N.C. 623, 575 S.E.2d 758 (2002).

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First, since this doctrine was created, there have been vast

changes in the pleading requirements and procedural law applicable

in domestic cases. See Shingledecker v. Shingledecker, 103 N.C.

App. 783, 786, 407 S.E.2d 589, 591 (1991) (noting that the

“defendant’s contention [that the plaintiff’s complaint was

fatally deficient in that it failed to allege lack of provocation

of the indignities alleged] was supported by cases decided prior

to the enactment of the North Carolina Rules of Civil Procedure at

G.S. § 1A-1,” but holding that that issue is not reviewable after

a motion to dismiss is denied by the trial court). In addition, a

dependent spouse no longer has to plead fault in order to receive

a divorce or alimony from a supporting spouse. See N.C. Gen. Stat.

§ 50-6.; N.C. Gen. Stat. § 50-16.3A(a).

Second, the substantive changes to North Carolina family law

severely undermine the rationale for the provocation rule. It

appears to us that, to the extent this rule is relevant at all,

the old consideration of provocation may now be addressed under

the various statutory forms of marital misconduct, which the trial

court now weighs with other factors in considering the amount of

alimony. See Romulus v. Romulus, ___ N.C. App. ___, ___, 715 S.E.2d

308, 325 (2011) (explaining that for all forms of marital

misconduct other than “illicit sexual behavior,” “the trial court

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has the discretion to weigh all of the other forms of “marital

misconduct” and to determine what effect, if any, the misconduct

should have upon the alimony award.”). For instance, if a husband

excessively uses alcohol “so as to render the condition of the

other spouse intolerable,” N.C. Gen. Stat. § 50-16.1A(3)(h), while

his wife constantly verbally abused him, N.C. Gen. Stat. § 50-

16.1A(3)(f), a trial court might justifiably find that both parties

had engaged in marital misconduct but could still award alimony,

after weighing their misconduct in light of the other alimony

factors to determine the equitable amount of alimony. See Romulus,

___ N.C. App. at ___, 715 S.E.2d at 325. Looking back to the

ancient cases on “provocation,” perhaps a less enlightened way of

looking at this would be to say that the wife must prove that if

she verbally abused the husband, she did so only because her

husband’s excessive drinking “provoked” her to do so, and not that

she had driven her husband to drink by her incessant nagging.

But this sort of reasoning as to provocation seems

inconsistent with the factor analysis now required by N.C. Gen.

Stat. § 50-16.3A, as it would require the complaining spouse to

prove a negative—that she did not “provoke” the misconduct of the

other spouse—before the trial court may consider the misconduct as

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a factor supporting an award of alimony.11 Our Supreme Court has

recognized that “[t]o require the complaining party to allege and

prove lack of provocation at first blush may seem illogical and

out of place.” Allen v. Allen, 244 N.C. 446, 450, 94 S.E.2d 325,

329 (1956). It justified such a seemingly illogical pleading

requirement on the basis that it would allow the courts to ensure

“that the assistance of the law in breaking up the family is used

for the benefit of the injured party only.” Id. at 451, 94 S.E.2d

at 329. This rationale no longer applies. Unlike under the former

fault-based divorce statutes, a dependent spouse seeking alimony

does not have to show that the supporting spouse offered her

indignities for the trial court to award the relief she seeks, see

N.C. Gen. Stat. § 50-16.3A, and, as a result, has no bearing on

the state’s interest in stable family units.

Finally, it is clear that there have been vast societal

changes since the Supreme Court created the provocation rule. In

1920, women obtained the right to vote by the 19th Amendment to

the United States Constitution. Husbands are no longer legally

responsible for a wife’s slander or assault of a neighbor; wives

are now responsible for their own criminal offenses of all sorts,

11Of course, fault is no longer required for an award of alimony;

it is simply a factor which may be considered if raised by the

parties. See N.C. Gen. Stat. § 50-16.3A.

-26-

felony or misdemeanor. Women can now own and convey property

separate and apart from their husbands. Women are now competent to

testify against their husbands as to a criminal charge of “assault

and battery” even if it does not “inflict[] or threaten[] a lasting

injury or great bodily harm.”12 N.C. Gen. Stat. § 8-57 (b)(2)

(2013). Husbands and wives are now considered separate legal

persons capable of criminal conspiracy between themselves. Stroud,

147 N.C. App. at 561, 557 S.E.2d at 551. Beating your wife with a

horsewhip, switch, or any other weapon, for that matter, is now

both a crime and grounds for entry of a Domestic Violence

Protective Order, and the fact that the wife may have verbally

“abuse[d] him in the strongest terms,” even by calling him a

scoundrel and wishing him dead is no defense. See N.C. Gen. Stat.

§ 14-33(c)(2) (assault on a female) (2013); N.C. Gen. Stat. § 50B-

2 (2013) (providing for legal relief from domestic violence).

Despite these changes in law and society, as well as many

others, our courts have continued on occasion to cite the language

12Cf. State v. Hussey, 44 N.C. (Busb.) 123, 127 (1852) (“The rule,

as we gather it from authority and reason, is, that a wife may be

a witness against her husband from felonies perpetrated, or

attempted to be perpetrated on her, and we would say for an assault

and battery which inflicted or threatened a lasting injury or great

bodily harm; but in all cases of a minor grade she is not. In this

case, there is no pretence that any lasting injury was inflicted;

on the contrary, the case states that the injury was temporary.”).

-27-

of these old cases. See, e.g., Ollis v. Ollis, 241 N.C. 709, 711,

86 S.E.2d 420, 421-22 (1955) (“It is not enough for the wife to

allege the husband has been abusive and violent toward her, . . .

. but also she must set forth what, if anything, she did to start

or feed the fire of discord so that the court may determine whether

she provoked the difficulty.”). This rule required such an

allegation despite a similar absence of any such language in the

relevant statutes.13 Even fifty years ago, our Supreme Court stated

that this “lack of provocation” rule is one of “debatable” benefits

that is “so very old that the years have barnacled it in numberless

cases upon our practice,” Cushing, 263 N.C. at 187, 139 S.E.2d at

222, but the Court did not go so far as to overrule these cases.

As discussed above, the rule appears to stem from an ancient

understanding of marriage which required that a wife show adequate

13See N.C. Gen. Stat. § 50-7 (1984); Puett, 75 N.C. App. at 557,

331 S.E.2d at 290 (“We agree that in North Carolina a party relying

on G.S. 50-7(4) must not have provoked the ‘indignities’ of which

he complains.” (citations omitted)); N.C. Gen. Stat. § 50-16.1

(1978); Vandiver, 50 N.C. App. at 328, 274 S.E.2d at 249 (under

N.C. Gen. Stat. § 50-16.1, approving of jury instructions that

required the jury to decide whether the indignities were offered

“without provocation”); N.C. Gen. Stat. § 50-16 (1966); Cushing,

263 N.C. at 187, 139 S.E.2d at 222 (holding that under N.C. Gen.

Stat. § 50-7, “which G.S. § 50-16 incorporates,” a wife seeking to

prove indignities “is required, therefore, not only to set out

with particularity those of her husband’s acts which she contends

constituted such indignities as to render her condition

intolerable and her life burdensome but also to show that those

acts were without adequate provocation on her part.”).

-28-

cause to leave her “proper place” and that she would be unable to

procure a divorce if she “provoked” the indignities of which she

complained.14 This Court has previously noted that “[t]hese

notions no longer accurately represent the society in which we

live, and our laws have changed to reflect this fact.” Vann v.

Vann, 128 N.C. App. 516, 518, 495 S.E.2d 370, 372 (1998) (citation

and quotation marks omitted).

“It is revolting to have no better reason for a rule of law

than that so it was laid down in the time of Henry IV. It is still

more revolting if the grounds upon which it was laid down have

vanished long since, and the rule simply persists from blind

imitation of the past.” Stroud, 147 N.C. App. at 561, 557 S.E.2d

at 551 (quoting Dege, 364 U.S. at 53-54, 4 L.Ed.2d at 1565). In

1912, Chief Justice Clark presciently observed that

14 See Wilcox v. Wilcox, 36 N.C. (1 Ired.Eq.) 36, 42-43 (1840)

(“[I]t cannot for a moment be pretended, that every act of improper

conduct, on the part of a husband, will authorise a wife to leave

her proper place--his side, and his home--and if she alleges that

he has been guilty of such gross misconduct as to justify this

seeming revolt from her duty, she must so charge the misconduct,

that it may be judicially seen, when the fact is ascertained,

whether it be of that character which induces a forfeiture of his

right to her society, and that he may have a full opportunity of

answering distinctly to the misconduct charged, and of explaining

or disproving it.”); Foy v. Foy, 35 N.C. (13 Ired.) 90, 96 (1851)

(“If a wife leave a husband, and refuses to live with him, without

sufficient cause, and he afterwards lives in adultery, this is no

cause of divorce; for, the consequence may be ascribed to her prior

violation of the duty of a wife.”).

-29-

Even statutes have been held obsolete and

unenforcible [sic] because of changed

conditions and the long lapse of time.

Certainly this ought to be true of decisions

which rest upon no statute and which are now

contrary to every sense of right and opposed

to the spirit of our Constitution and of the

age in which we live.

The “common law” has been praised because of

the very fact that, being “judge-made,” it was

flexible and could be molded from time to time

to fit the changing conditions of society. But

it loses this sole excellence when it is used

to thwart beneficial statutes, expressing the

demand of the age for more just and benign

laws, by construing them according to the

darkened and narrow views of the judges of the

fourteenth century, and not according to the

intendment of legislators imbued with the

enlightened ideas of the twentieth century. .

. .

There are of course principles of the common

law which are eternally just and which will

survive throughout the ages. But this is not

because they are found in a mass of error or

were enunciated by judges in an ignorant age,

but because they are right in themselves and

are approved, not disapproved as much of the

common law must be, by the intelligence of

today.

As, however, common-law views as to the status

of women still survive among a few and are

still urged as law, it would not be amiss

should the General Assembly make such

enactment in this regard as that body may deem

just and proper. Every age should have laws

based upon its own intelligence and expressing

its own ideas of right and wrong. Progress and

betterment should not be denied us by the dead

hand of the Past. The decisions of the courts

-30-

should always be in accord with the spirit of

the legislation of to-day [sic] . . . .

Price v. Charlotte Electric Ry. Co., 160 N.C. 450, 456-57, 76 S.E.

502, 504-05 (1912) (Clark, C.J., concurring).

Nevertheless, we cannot overrule our Supreme Court’s opinions

or those issued by other panels of this Court simply because the

rule they recite is old and developed under statutes repealed long

ago. See Andrews ex rel. Andrews v. Haygood, 188 N.C. App. 244,

248, 655 S.E.2d 440, 443 (2008) (“[T]his Court has no authority to

overrule decisions of our Supreme Court and we have the

responsibility to follow those decisions until otherwise ordered

by our Supreme Court.” (citation, quotation marks, brackets, and

ellipses omitted)); In re Appeal from Civil Penalty, 324 N.C. 373,

384, 379 S.E.2d 30, 37 (1989) (holding that one panel of the Court

of Appeals cannot overrule another). The State of North Carolina,

its families, and its courts could benefit from the Supreme Court’s

reconsideration of this ancient doctrine that appears to be

inconsistent with our existing statutory scheme of post-separation

support and alimony and “inconsistent with the marked trend in

this jurisdiction toward gender neutrality in the family law area.”

Vann, 128 N.C. App. at 519, 495 S.E.2d at 372.15

15 Although the concept is technically “gender neutral” as it is

now applied to both husbands and wives, it is clear that in the

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Here, even assuming the rule as to provocation does apply,

defendant did not raise plaintiff’s failure to allege a “lack of

provocation” below and did not present any evidence which could

sustain a finding of “provocation” on plaintiff’s part. The trial

court is not normally required to make findings on issues not

raised by the evidence. See Friend-Novorska v. Novorska, 143 N.C.

App. 387, 395 n.3, 545 S.E.2d 788, 794 n.3 (2001) (“The ultimate

facts at issue in the case are facts relating to the factors set

forth in section 50-16.3A(b) for which evidence is presented at

trial.”). Moreover, the trial court’s findings, taken as a whole,

make clear that plaintiff did nothing that could be considered

“adequate provocation” of defendant’s abuse. Therefore, even

assuming that a “want of provocation” is still an element of

indignities under N.C. Gen. Stat. § 50-16.1A, the trial court here

did not err in finding that defendant had subjected plaintiff to

indignities constituting marital misconduct.

As noted above, defendant only argues that the trial court

abused its discretion in awarding plaintiff $3,500 per month in

alimony for twelve years because its findings on marital misconduct

past the rule was often used in practice as a means for a husband

to justify his refusal to continue to support, or even to justify

his physical abuse of, a wife who had failed to fulfill her proper

role as a wife and mother, and the cases all reflect this

background.

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are unsupported by the evidence. Defendant does not otherwise

challenge the alimony order or the trial court’s consideration of

other alimony factors. Therefore, any such arguments have been

abandoned. N.C.R. App. P. 28(a). There was sufficient evidence to

support the trial court’s findings on marital misconduct, and

defendant has shown no abuse of discretion in the trial court’s

consideration of this misconduct in setting the amount and term of

the alimony award.

Yet our ruling cannot end here, since we realize that the

alimony award was made in conjunction with the equitable

distribution award, and the trial court may need to reconsider the

alimony amount in light of any changes to the property

distribution. See N.C. Gen. Stat. § 50-16.3A(a); Lamb v. Lamb,

103 N.C. App. 541, 547, 406 S.E.2d 622, 625 (1991). Therefore, we

remand the alimony award only so that the trial court may

reconsider the amount and term of alimony based upon the new

equitable distribution determination.

This opinion does not permit the parties to revisit the issue

of marital misconduct on remand, as we have found that the trial

court did not err as to this issue, and this opinion does not

dictate that the trial court should or should not change the

alimony award on remand; we merely permit the trial court to

-33-

exercise its discretion on remand to reconsider the alimony amount

and term, as the trial court must have the ability to consider the

alimony award in light of the new equitable distribution award

entered on remand, since they were considered together in the prior

trial and order.

IV. Conclusion

For the foregoing reasons, we vacate the portion of the trial

court’s order concerning equitable distribution and remand for the

trial court to appoint a GAL, or expand the existing GAL’s

responsibilities, to represent the property interests of the minor

child, who is the uncontested holder of legal title to the two

houses distributed to defendant. We remand the portion of the trial

court’s order concerning alimony only for the limited purpose of

reconsideration of the amount and term based upon the ultimate

equitable distribution award.

VACATED in part and REMANDED.

Judge DILLON concurs.

Judge HUNTER, JR., Robert N. concurs in the result only.