#### WILSON S. LOCKHART v. KATHERINE LOCKHART.

(Filed 10 November, 1943.)

1. Divorce §§ 2a, 12—

Tbe effect of a judgment of divorce *a mensa et tlloro*with alimony is to legalize tlie separation of the parties, which had theretofore been an abandonment on the part of one of them. It does not sever the marriage tie.

2. Divorce § 2a—

A legal separation for the requisite period of two years is ground for divorce under ch. 100, Public Laws of 1937, Michie’s Code, 1659 (a). The separation here contemplated includes a “judicial separation” as well as one brought about by the act of the parties, or one of them.

Appeal by plaintiff from Williams, *J.,*at June Term, 1943, of Wake.

Civil action for absolute divorce on the ground of two years’ separation.

The complaint, filed 27 January, 1943, alleges:

1. That plaintiff and defendant were married 21 November, 1931, and intermittently lived together as husband and wife until 11 March, 1940, when they separated.

2. That plaintiff and defendant have lived separate and apart for two years and more, next immediately preceding the filing of the complaint, and the plaintiff has been a resident of the State for the requisite period of one year, etc.

The defendant answered, admitted the marriage, and alleged in bar that the separation took place in 1936 as a result of plaintiff’s wrongful abandonment of the defendant; that the character of the separation was adjudged in 1940 in a prior action wherein the defendant was granted a divorce *a mensa et thoro*and alimony.

The plaintiff replied, admitted the former proceeding, and pointed out that his present action is for two years’ separation beginning since the judgment of 1940.

*560Tbe court being of opinion that as tbe parties bad not lived together since 1936, tbe separation began at that time and not in 1940, and accordingly directed a verdict for tbe defendant. Exception.

Plaintiff appeals, assigning errors.

*F. J. Carnage and Thomas W. Ruffin for plaintiff, appellant.*

*Frank P. Spruill, Jr., for defendant, appellee.*

Stacy, O. J.

Tbe question for decision is whether a judicial separation froto bed and board for two years affords ground for divorce under cb. 100, Public Laws 1937. Tbe law answers in tbe affirmative. Compare Si*tterson v. Sitterson,*191 N. C., 319, 131 S. E., 641; *Lee v. Lee,*182 N. C., 61, 108 S. E., 352.

Tbe plaintiff brought an action in 1939 for divorce on tbe ground of two years’ separation. Tbe defendant answered, admitted tbe separation since 1936, and set up a cross action for a divorce *a mensa et thoro*and alimony, alleging that tbe plaintiff bad wrongfully abandoned tbe defendant and their minor child. C. S., 1660 and 1665; *Pharr v. Pharr, ante,*115. In this proceeding, tbe jury answered tbe issues in favor of tbe defendant, and by consent, alimony and counsel fees were fixed in tbe judgment, which was entered at the February Term, 1940, Wake Superior Court.

The effect of this judgment was to legalize tbe separation of the parties which theretofore bad been an abandonment on the part of the plaintiff. He could not thereafter be charged with desertion. *Weld v. Weld,*27 Minn., 330, 7 N. *W.,*267. It did not, however, sever the marriage tie. *Cooke v. Cooke,*164 N. C., 272, 80 S. E., 178.

The present action is for two years’ separation since the 1940 judgment. A legal separation for the requisite period of two years is ground for divorce under ch. 100, Public Laws 1937, which will appear in the General Statutes of 1943 as G. S. 50-6. *Byers v. Byers, ante,*85; *Lockhart v. Lockhart, ibid.,*123. The language of the statute is, that marriages may be dissolved and divorces granted “on application of either party, if and when the husband and wife have lived separate and apart for two years.” *Oliver v. Oliver,*219 N. C., 299, 13 S. E. (2d), 549; *Archbell v. Archbell,*158 N. C., 408, 74 S. E., 327. Tbe separation here contemplated, unrestricted as it is, includes a “judicial separation” as well as one brought about by act of the parties, or one of them. *Cooke v. Cooke, supra.*

Perhaps it should be noted that in the prior proceeding between the parties hereto the defendant filed a cross action for divorce *a mensa*under C. S., 1660, a permissible practice with us, *Cook v. Cook,*159 N. C., 46, *56174 S. E., 639, whereas in *Byers v. Byers, supra,*the defendant there' proceeded in an independent action for alimony without divorce under C. S., 1667. The purpose and effect of the two proceedings are not the same. *Shore v. Shore,*220 N. C., 802, 18 S. E. (2d), 353.

There was error in directing a verdict for the defendant.

New trial.