N.C.P.I.—Civil 815.52

The (state number) issue reads:

"Did the defendant maliciously and without provocation turn the

plaintiff out-of-doors?"

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, three

things:

First, that the defendant turned the plaintiff out-of-doors. A spouse

is turned out-of-doors when ejected from or forced to leave the marital

home. (This may be accomplished by force or by threat of violence. It

may also be accomplished by cruelty that causes the spouse to leave the

marital home. Cruelty may consist of an affirmative act or a willful

failure, such as failing to provide adequate support as required by law.)2

Second, that the turning out-of-doors was done with malice. Malice

means hatred, ill will or spite. It also means the intentional doing of an

act which is calculated to cause injury or harm and which is done without

justification or excuse.

Third, that the plaintiff did not engage in conduct which provoked

the defendant to turn her out-of-doors.3 What constitutes provocation

depends on the facts and circumstances of each case. Ordinarily,

provocation does not exist unless the conduct of the plaintiff has been

such as would likely render it impossible for the defendant to continue

the marital relationship with safety, health and self-respect.4

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence that

the defendant maliciously and without provocation turned the plaintiff

out-of-doors, then it would be your duty to answer this issue "Yes" in

favor of the plaintiff.

If, on the other hand, you fail to so find, it would be your duty to

answer this issue "No" in favor of the defendant.