Opinion

Dusenberry v. Dusenberry

  • 314 N.C. 608
  • 335 S.E.2d 892
  • 1985 N.C. LEXIS 1999
Court
Supreme Court of North Carolina
Filed
Nov 5, 1985
Status
Published
Author
Branch
On the bench
Branch, Meyer, Billings
Cited by
0 cases
Authority
More cited than 45.3%

The opinion

BRANCH, Chief Justice.

In this equitable distribution action Judge Allen found, inter alia, that defendant-wife “began having an adulterous affair . . . and began neglecting the plaintiff and their three minor children” which conduct was a “major reason for the break-up of this marriage . . . and . . . was the only serious and significant mistreatment of either party by the other party during the course of this marriage.” There were other extensive findings concerning the fault of the defendant-wife in this connection. Based upon his findings, Judge Allen concluded that the “relative fault of the parties leading to the disintegration of their marriage” was a proper factor for consideration in determining the distribution of the marital assets. Subsequent to the entry of this order by Judge Allen, the Court of Appeals held that fault was not a relevant factor in determining the equitable distribution of marital property. Wade v. Wade, 72 N.C. App. 372 , 325 S.E. 2d 260 (1984), disc. rev. denied, 313 N.C. 612 , 330 S.E. 2d 616 (1985); Smith v. Smith, 71 N.C. App. 242 , 322 S.E. 2d 393 (1984); and Hinton v. Hinton, 70 N.C. App. 665 , 321 S.E. 2d 161 (1984). The Court of Appeals vacated Judge Allen’s order and remanded the cause for a new order “based solely upon relevant and appropriate findings.” The Court of Appeals’ decision in this case was filed 19 February 1985. In the meantime, we allowed plaintiffs petition in Smith v. Smith, one of the cases relied upon by the Court of Appeals in its decision in the case now before us.

In Smith v. Smith, 314 N.C. 80, 87 , 331 S.E. 2d 682, 687 (1985), filed subsequent to the Court of Appeals’ decision in the instant case, we held that “marital fault or misconduct of the parties which is not related to the economic condition of the marriage is not germane to a division of marital property under 50-20(c) and should not be considered.”

*610 This cause is remanded to the Court of Appeals for remand to the District Court of Alamance County for further proceedings in accord with the principles set forth in our opinion in Smith.

Modified and affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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