MALLOY v. MALLOY

No. 7615DC796.

234 S.E.2d 199 (1977)

33 N.C. App. 56

Alberta Scoggins MALLOY v. John Harold MALLOY. John H. MALLOY v. Alberta Scoggins MALLOY.

Court of Appeals of North Carolina.

April 20, 1977.


Attorney(s) appearing for the Case

Ross & Dodge by Harold T. Dodge, Graham, for plaintiff and cross-defendant appellant, Alberta Scoggins Malloy.

Latham, Wood & Cooper by Steve A. Balog, Burlington, for defendant and cross-plaintiff appellee, John H. Malloy.


CLARK, Judge.

Defendant first assigns error to the refusal of the trial judge to submit the tendered issue of condonation to the jury. Plaintiff contends that there is no error because condonation was neither raised in the pleadings nor tried by implied consent under G.S. 1A-1, Rule 15(b). While it is true that the pleadings contain no allegation of condonation by plaintiff of defendant's alleged adultery, we do not think this precludes defendant from litigating the...

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