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Docket Number

No. 7919DC992

Attorney(S)

No counsel for plaintiff appellee. Robert M. Davis, for defendant appellant.

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Smart Summary

Case Summary: Cynthia Mahaley Hand v. James David Hand, No. 7919DC992 (N.C. Ct. App. Apr. 1, 1980)

Factual and Procedural Background

Plaintiff and defendant executed a separation agreement on October 19, 1978. Under that agreement the defendant was required to pay the plaintiff (then pregnant) $60.00 per week plus an additional $50.00 per week until she could return to work. A child of the parties was born January 1, 1979.

On April 30, 1979 the plaintiff filed a motion seeking custody of the minor child, child support, and medical expenses; the court granted the requested relief by a consent decree. The plaintiff later moved for an order to show cause why the defendant should not be held in contempt for failing to comply with the alimony provisions of the October 19, 1978 order. In his answer the defendant asserted as a defense that the parties had reconciled on two occasions after the order and thereby condoned the separation so that subsequent support would not be governed by the court order.

After a hearing the trial court made findings that, among other things, the defendant was in arrears ($170 at the time of filing plaintiff's motion; $350 at the time of hearing), had failed to show a resumption of the marital relationship since entry of the order, and had wilfully failed to make payments under the order without legal justification. The trial court concluded there had been no reconciliation, the October 19, 1978 order remained in full force and effect, and the defendant was in wilful contempt for failing to comply. The defendant appealed from the civil contempt adjudication. The Court of Appeals affirmed.

Legal Issues Presented

Whether the parties reconciled and resumed marital cohabitation after the entry of the separation agreement/consent order so as to abrogate the defendant's obligation to make alimony payments under that order.
Whether, where the evidence is conflicting, the presence or absence of mutual intent to resume the marital relationship is an essential element in deciding whether reconciliation and resumption of cohabitation occurred.

Arguments of the Parties

Defendant's Arguments

Asserted in his answer that the parties reconciled on two occasions after the October 19, 1978 order and thereby condoned the prior separation, making any support provided thereafter a matter of private arrangement rather than obligation under the court order.
Presented evidence that the parties resumed marital relations for one week on or about December 1, 1978; later lived together in the parties' trailer from March 8 to March 23, 1979; during that period they had sexual intercourse, went to church together once, went shopping for an automobile, and sometimes slept together (and other nights he slept on the couch).

Plaintiff's Evidence

Testified she lived with her parents after December 1, 1978 until the child's birth, and returned to the trailer at defendant's suggestion.
Described defendant's visits and assistance with the baby; said defendant moved back into the trailer and was making his payments while there, but that he slept on the couch every night and they did not have sexual relations.
Stated she never told defendant she would take him back as her husband; they ate meals in the trailer, took turns caring for the child, and on one occasion went to church together; defendant worked third shift.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953)	That where reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support is abrogated.	Cited as authority for the general proposition that reconciliation which resumes cohabitation will abrogate separation agreements providing for future support.
In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976)	When separated spouses who have executed a separation agreement resume living together and hold themselves out as man and wife, that conduct rescinds the separation agreement insofar as it has not been executed; sexual relations are not required; a subsequent separation does not revive the agreement.	Used to explain the legal consequence of resumption of marital cohabitation and to distinguish situations where the facts are undisputed (decided as a question of law) from those where evidence conflicts.
Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489, 491 (1945)	Society's interest in marital status; living separately contemplates complete cessation of cohabitation; private evidence of separation sought "behind the closed doors of the matrimonial domicile."	Quoted in Adamee and relied upon to show the policy underlying the requirement of separate living to sustain a separation; the Court of Appeals referenced this reasoning in its analysis.
Newton v. Williams, 25 N.C. App. 527, 532, 214 S.E.2d 285, 288 (1975)	The issue of the parties' mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation where the evidence is conflicting.	Applied to emphasize that when evidence conflicts the parties' mutual intent is a necessary consideration and supports treating reconciliation as a factual question for the trier of fact.
Laughter v. Lambert, 11 N.C. App. 133, 136, 180 S.E.2d 450, 452 (1971)	When the trial judge sits as judge and juror, his findings of fact have the force and effect of a jury verdict and are conclusive on appeal if supported by evidence; credibility and contradictions are for the trier of fact.	Relied upon to justify deferring to the trial court's findings on reconciliation and to affirm the order because there was competent evidence supporting those findings.
Hava v. Chavigny, 147 La. 331, 84 So. 892	Quoted in Dudley concerning evidence of separation being "sought behind the closed doors of the matrimonial domicile."	Appears as an authority quoted in Dudley and cited in the opinion's exposition of the general rule regarding cohabitation and separation.

Court's Reasoning and Analysis

The Court of Appeals observed that the defendant's appeal depended entirely on whether the parties had reconciled and resumed marital cohabitation, because such reconciliation would abrogate the separation agreement and its alimony provisions. The court first stated the established rule (citing Hester and a treatise) that reconciliation and resumption of cohabitation abrogate separation agreements providing for future support.

The court then turned to In re Estate of Adamee, which holds that spouses who resume living together and hold themselves out as man and wife rescind their separation agreement as a matter of law where the facts are undisputed; Adamee also indicates sexual relations are not a necessary element for that conclusion. The panel explained, however, that Adamee had been decided on undisputed facts as a question of law, and therefore does not displace the rule that when evidence is conflicting the parties' mutual intent remains an essential element (citing Newton v. Williams).

The court reviewed the competing evidence: defendant's testimony that the parties resumed relations briefly in December 1978 and lived together in March 1979 with intermittent intimacy and shared activities; and plaintiff's testimony that while the defendant stayed in the trailer and assisted with the baby, he slept on the couch every night, they did not have sexual relations, she never told him she would take him back as husband, and defendant was making payments while there. Finding the evidence conflicting, the court emphasized that credibility and contradictions are matters for the trier of fact and that the trial judge's factual findings, when supported by competent evidence, are conclusive on appeal (citing Laughter v. Lambert).

Because the trial court's findings that there was no reconciliation and that the defendant wilfully failed to make required payments were supported by competent evidence, the Court of Appeals held that those findings and the resulting conclusions were binding and affirmed the trial court's order adjudging the defendant in civil contempt.

Holding and Implications

Holding: The Court of Appeals affirmed the trial court's order adjudging the defendant in civil contempt for willful failure to comply with the alimony provisions of the October 19, 1978 separation agreement and consent order.

Implications: The direct effect is that the trial court's findings — that the parties did not reconcile so as to abrogate the separation agreement, that the October 19, 1978 order remained in full force, and that the defendant wilfully failed to make payments — stand and were upheld on appeal. The opinion applies and reconciles prior authority distinguishing cases decided as a matter of law on undisputed facts (e.g., Adamee) from cases where credibility and mutual intent are factual issues for the trier of fact (e.g., Newton, Laughter). The Court did not announce a new legal principle beyond applying existing precedent to the facts of this case.

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CYNTHIA MAHALEY HAND v. JAMES DAVID HAND

1. Husband and Wife 12 — no reconciliation after separation — alimony provision not abrogated Plaintiff's evidence supported the trial court's determination that parties who had executed a separation agreement and consent judgment did not thereafter reconcile and resume marital cohabitation so as to abrogate defendant husband's duty under the agreement and judgment to pay alimony to plaintiff wife where plaintiff testified that she went back to live in the parties' trailer after she had a baby; defendant moved back into the trailer for a while to help her with the baby; defendant slept on the couch every night and they did not have sexual relations; the parties ate their meals in the trailer, took turns caring for the baby, and on one occasion went to church together; plaintiff at no time told defendant she would take him back as her husband; and defendant was making his alimony payments while living at the trailer.

2. Husband and Wife 12 — reconciliation after separation — consent of the parties The issue of the parties' mutual consent is an essential element in deciding whether the parties have reconciled and resumed cohabitation when the evidence is conflicting.

Plaintiff and defendant entered into a separation agreement on 19 October 1978 which required defendant to pay plaintiff, who was then pregnant, $60.00 each week plus an additional $50.00 per week until she was able to return to work. A child was born to the parties on 1 January 1979.

On 30 April 1979, plaintiff filed a motion for custody of the parties' minor child, for child support, and for medical expenses incurred due to the birth of the child. The relief prayed for was granted by the trial court in a consent decree. Plaintiff subsequently filed a motion for issuance of an order to show cause why defendant should not be held in contempt for failing to comply with the alimony provisions of the 19 October 1978 order. In his answer, defendant asserted as a defense:

"IV. That the parties reconciled on two occasions after the Order was entered on October 19, 1978; that the parties condoned the prior separation of the parties by the reconciliation and any support provided thereafter was not a matter of obligation under the prior court order, but was a matter between the plaintiff and defendant."

After hearing the parties' evidence, the trial court made the pertinent findings of fact:

"2. That as of the date of filing of plaintiff's Motion for contempt, defendant was in arrears in said payments in the amount of $170.00.

EXCEPTION NO. 1

3. That as of the date of hearing of this cause, defendant is in arrears in said payments in the amount of $350.00.

EXCEPTION NO. 2

* * *

7. That the defendant has failed to show a resumption of the marital relationship between the plaintiff and the defendant at any time since the entry of said Order.

EXCEPTION NO. 3

8. That the defendant's failure to make payments according to the terms of said Order has been wilful and without legal justification or excuse.

EXCEPTION NO. 4"

Based upon these pertinent findings of fact, the trial court concluded:

"1. That there has been no reconciliation of the parties hereto or condonation by the plaintiff at any time since entry of said Order.

EXCEPTION NO. 5

2. That the Order of this Court entered on October 19, 1978 is and remains valid and in full force and effect and is and has been valid and of full force and effect since the date of its entry.

EXCEPTION NO. 6

3. That the defendant is in wilful contempt of this Court for his failure to abide by the terms of the said Order.

EXCEPTION NO. 7"

From entry of an order adjudging him in civil contempt, defendant appeals.

ERWIN, Judge.

Defendant's evidence presented at trial tended to show the following.

The parties executed their separation agreement on 19 October 1978. On or about 1 December 1978, the parties resumed their marital relations for one week. Thereafter, they lived separate and apart until 8 March 1979, when they lived together in their trailer until 23 March 1979. During this period, they had sexual intercourse, went to church together on one occasion, and went shopping for an automobile. Some nights, he slept with plaintiff; on other nights, he slept on the couch.

Plaintiff's evidence tended to show that after 1 December 1978, she resided with her parents in Winston-Salem until the baby was born. She went back to live in the trailer at defendant's suggestion. Defendant came by to see the baby one day when the baby was sick; he agreed to help with the baby who was up a lot at night. On several occasions, defendant stayed until 11:00 p.m., and it was not too big a change for defendant to sleep there, and defendant moved back into the trailer. Defendant was making his payments while he was in the trailer. He slept on the couch every night, and they did not have sexual relations. At no time did she tell defendant she would take him back as her husband. They ate their meals in the trailer. They took turns caring for the child, and on one occasion, they went to church together. Defendant worked third shift.

Defendant's entire appeal hinges on the determination whether he and plaintiff had reconciled and resumed their marital cohabitation. Where such a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953); 2 Lee, North Carolina Family Law, 200 (3rd ed. 1963), p. 420.

In In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), our Supreme Court held that when separated spouses who have executed a separation agreement resume living together, they hold themselves out as man and wife in the ordinary meaning of that phase, and irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinds their separation agreement insofar as it has not been executed; and further, a subsequent separation will not revive the agreement. In reaching its holding, the Court quoted from Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489, 491 (1945), where Justice Denny (later Chief Justice) reasoned in pertinent part:

"`Marriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the ground of separation, when the only evidence of such separation must, in the language of the Supreme Court of Louisiana (in the case of Hava v. Chavigny, 147 La. 331, 84 So. 892) "be sought behind the closed doors of the matrimonial domicile." Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation.'"

291 N.C. at 392, 230 S.E.2d at 546. This language, standing alone, would indicate that the actual intention of the parties to resume their marital cohabitation is not relevant to determining a resumption of the marital relationship. Later in its opinion, however, the Supreme Court indicates that the posture of the case being decided was the essential determinant:

"All the evidence offered by appellees in support of their motion for summary judgment and by appellants in opposition to it, tends to show that after the execution of the separation agreement and consent judgment on 20 December 1973, Mrs. Adamee returned to the marital home which she and Adamee had occupied prior to the separation; that thereafter the commissioners named in the consent judgment to sell the couple's joint property for division were instructed not to do so; that Adamee paid Mrs. Adamee's attorney for representing her in the litigation between them; and that from January 1974 until Adamee's death on 20 August 1974, he and Mrs. Adamee lived together continuously in their marital residence. Therefore, no issue arose for either judge or jury to decide as to their resumption of marital relations. As a matter of law they had done so.

It follows that Judge Braswell correctly denied appellees' motion for summary judgment but that he erred in refusing to affirm the clerk's order that Mrs. Adamee is entitled to qualify as administratrix of the estate of Adamee and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment of 20 December 1973. It also follows that the Court of Appeals erred when it affirmed Judge Braswell's judgment.

In its consideration of this case the Court of Appeals began with the assumption that the appeal involved a disputed fact, that is, whether a reconciliation and resumption of marital relations had actually occurred between Adamee and Mrs. Adamee. We, however, have viewed and decided the case as presenting a question of law arising upon undisputed facts."

Id. at 393, 230 S.E.2d at 546-47. Thus, we believe that our statement in Newton v. Williams, 25 N.C. App. 527, 532, 214 S.E.2d 285, 288 (1975), that "[t]he issue of the parties' mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation" is still the rule where the evidence is conflicting.

Where the trial judge sits as judge and juror, his findings of fact "`have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain a finding to the contrary. . . .'" Laughter v. Lambert, 11 N.C. App. 133, 136, 180 S.E.2d 450, 452 (1971). Credibility, contradictions, and discrepancies are all matters to be resolved by the trier of the facts. Laughter v. Lambert, supra. Since there is competent evidence to support the trial court's findings of facts and these in turn support its conclusions of law, the order entered thereupon is

Affirmed.

Judges MARTIN (Robert M.) and CLARK concur.

HAND v. HAND