15 N.C. App. 314, 190 S.E.2d 258 (1972)
The parties, Esther Zerden Greene and her husband, were married in August 1952 and lived together until October 26, 1970, when the defendant husband left the plaintiff.1 The plaintiff is a dependent spouse and the defendant is a supporting spouse of considerable financial means.2
At trial, the court made extensive findings of fact based on a record exceeding five hundred pages and numerous exhibits detailing marital misconduct by both parties.3 The court concluded that the defendant was guilty of abandonment and that the plaintiff's misconduct was either condoned by the defendant or resulted from his connivance.4 The court awarded alimony to the plaintiff.5
During cross-examination, the plaintiff admitted to committing adultery during the marriage, but the trial court struck this testimony from consideration in the alimony action while admitting it for custody purposes. The defendant had employed a detective who, following the defendant's instructions, hired individuals to induce the plaintiff into illicit sexual activities, including arranging a picnic where the plaintiff engaged in misconduct with another woman after consuming alcohol provided by an agent.6
The defendant sought to introduce testimony from a psychiatrist who had consulted with the plaintiff in 1959, but the court sustained an objection on privilege grounds.7 The defendant also attempted to introduce tape recordings of conversations with the parties' former maid.8 Additionally, the defendant failed to produce court-ordered documents regarding his financial condition.9
The trial court denied the defendant's motion to dismiss under Rule 41(b) and entered judgment in favor of the plaintiff on the alimony claim.10
Whether the trial court properly refused to dismiss the plaintiff's alimony claim under Rule 41(b) based on her admissions of adultery?11
Alimony is not payable when an issue of adultery pleaded in bar thereto is found against the spouse seeking alimony under G.S. 50-16.6.12 Construing G.S. 8-56 and G.S. 50-10 together, neither the husband nor the wife is a competent witness in any action inter se to give evidence for or against the other in any action or proceeding in consequence of adultery.13
Yes. The trial court properly refused to dismiss the plaintiff's alimony claim under Rule 41(b) because the plaintiff's admissions of adultery during cross-examination were properly stricken from consideration in the alimony action.14 The facts establish that the plaintiff admitted committing adultery during the marriage, yet the trial court ordered this testimony stricken while admitting it only for custody purposes.15 The court further found that even if the testimony were admissible the acts were condoned by the defendant.16
Because the admissions could not be used to bar alimony the motion to dismiss lacked any evidentiary foundation and was correctly denied.17
The trial court correctly denied the defendant's motion to dismiss the alimony claim under Rule 41(b).18
Whether the plaintiff's admissions of adultery were properly excluded from consideration in the alimony action?21
Construing G.S. 8-56 and G.S. 50-10 together, neither the husband nor the wife is a competent witness in any action inter se to give evidence for or against the other in any action or proceeding in consequence of adultery, and may not be compelled to give such evidence.22
Yes. The plaintiff's admissions of adultery were properly excluded from consideration in the alimony action.23 The facts show that the plaintiff made these admissions on cross-examination and that the trial court struck the testimony from the alimony portion of the case.24 The rule announced in Wright v. Wright directly bars spousal testimony concerning adultery in actions between the parties.25 The trial court therefore acted correctly in excluding the evidence from the alimony determination.26
The trial court properly excluded the plaintiff's admissions of adultery from the alimony action.27
Whether connivance constitutes a valid defense to allegations of sexual misconduct other than adultery?28
Yes. Connivance constitutes a valid defense to allegations of sexual misconduct other than adultery.31 The facts demonstrate that the defendant employed agents to induce the plaintiff into illicit sexual activities including arranging a picnic where the plaintiff engaged in misconduct with another woman after consuming alcohol supplied by an agent.32 The court correctly extended the equitable defense of connivance to these acts of sexual misconduct because the defense rests on principles of unclean hands and consent that apply equally to any procured sexual wrongdoing.33
To limit connivance to adultery alone would produce the unacceptable result of treating procurement of worse conduct as acceptable.
Connivance is a valid defense to allegations of sexual misconduct other than adultery.34
Whether the evidence was sufficient to support the trial court's findings regarding the defendant's connivance?35
Yes. The evidence was sufficient to support the trial court's findings regarding the defendant's connivance.38 The facts establish that the defendant had an extramarital affair, engaged a detective after his secretary's divorce, and directed the detective to employ individuals at substantial cost to induce the plaintiff to commit acts that could be used against her.39 The detective's testimony confirmed that the defendant instructed him to try a woman after efforts with men failed and agreed to pay the expenses of hiring the second girl.
This evidence amply supports the findings that the defendant actively connived at and corruptly procured the plaintiff's misconduct.40
The evidence was sufficient to support the trial court's findings that the defendant connived at the plaintiff's misconduct.41
Whether the trial court properly excluded the testimony of the psychiatrist who had consulted with the plaintiff?42
The evidence sought from a psychiatrist is privileged under G.S. 8-53 unless the trial court finds that it is necessary to a proper administration of justice.43 When no reason is assigned by the court for a ruling which may be made as a matter of discretion the presumption on appeal is that the court made the ruling in the exercise of its discretion.44
Yes. The trial court properly excluded the testimony of the psychiatrist who had consulted with the plaintiff. The facts show that Dr. Carr consulted briefly with the plaintiff in 1959, made no notes, and had seen thousands of patients since that time.45 The court sustained the objection on privilege grounds without finding that disclosure was necessary to the administration of justice.
Because the decision whether to override the privilege lies within the trial court's discretion and no abuse appears the exclusion was proper.46
The trial court properly excluded the psychiatrist's testimony on grounds of privilege.
Whether the trial court properly excluded the tape recordings offered by the defendant?47
Tape recordings offered solely for impeachment purposes may be excluded when the witness furnished no evidence at trial bearing on any fact found by the court. When the proponent previously denied under oath that the recordings existed the recordings lack impeachment value.
Yes. The trial court properly excluded the tape recordings offered by the defendant.48 The facts establish that the defendant denied under oath during discovery that any recordings existed yet later sought to introduce three tapes to impeach the former maid.49 The court considered prior testimony in which the defendant stated he had made no such recordings and in which the maid claimed the statements were lies put in her mouth.50
Because the maid furnished no evidence at trial on any fact ultimately found by the court the recordings had no impeachment value and exclusion was correct.51
The trial court properly excluded the tape recordings.52
Whether the trial court properly found that the defendant had been evasive in responding to discovery requests?53
Yes. The trial court properly found that the defendant had been evasive in responding to discovery requests.5657 The facts show that the defendant was ordered to produce appraisals of real estate, leasing agreements, and copies of corporate tax returns but failed to produce any of the documents.58 The court found that the defendant made no effort to comply and that finding is conclusive on appeal because the supporting evidence is not in the record.59
The finding therefore supports the conclusion that the defendant was deliberately evasive.60
The trial court properly found that the defendant had been evasive in responding to discovery requests.