Appeal by defendant from judgment dated 1 September 2000 by
Judge Ernest J. Harviel in District Court, Alamance County. Heard
in the Court of Appeals 12 March 2002.
Wishart, Norris, Henninger & Pittman, P.A., by Pamela S. Duffy
and Hillary D. Whitaker, for plaintiff-appellee.
Neill A. Jennings, Jr. for defendant-appellant.
McGEE, Judge.
William James Perkins (plaintiff) and Margaret S. Perkins
(defendant) were married on 31 May 1986. Plaintiff filed a
verified complaint dated 29 June 2000 seeking an absolute divorce
from defendant and preserving the issue of equitable distribution
then pending in a previously filed action. In his divorce
complaint, plaintiff alleged in part that
1. The plaintiff is a citizen and
resident of Guilford County, North Carolina,
and has been a resident of the State of North
Carolina for at least six consecutive months
next preceding the filing of this Complaint.
2. The defendant is a citizen and
resident of Randolph County, North Carolina.
3. The plaintiff and defendant were
lawfully married on May 31, 1986.
4. The plaintiff and defendant
separated from each other on June 19, 1999
with the intention of remaining separate and
apart from each other, and have at no time
resumed the marital relationship since said
date.
Defendant filed an answer on 10 August 2000 admitting the
allegations in paragraphs one through three but denying the
allegations in paragraph four. In her answer, defendant stated
that the "allegations [in paragraph 4] are false and untrue and are
denied. Plaintiff went into the hospital on 21 June 1999.
Defendant was forced to leave the marital home on 18 October 1999,
the day before Plaintiff returned home."
A divorce hearing was held on 1 September 2000. Plaintiff's
son, William Randy Perkins (Randy Perkins) testified that plaintiff
was admitted to Alamance Regional Medical Center on 21 June 1999.
On that date, Randy Perkins heard a discussion between plaintiff
and defendant at the hospital during which defendant told plaintiff
that "[y]ou needn't be thinking about coming home for me to take
care of you, unless you sign the farm over to me." Randy Perkins
testified that plaintiff responded "[t]hat's not going to happen."
Randy Perkins testified that on 8 July 1999 plaintiff executed
a general power of attorney and a living will and health care power
of attorney, granting Randy Perkins his power of attorney. On that
same day plaintiff executed a revocation of the power of attorney
he had previously issued in favor of defendant.
Plaintiff was discharged from the hospital on 22 July 1999 andbegan residing at Alamance Health Care Center. Randy Perkins
testified that he made the arrangements for plaintiff's move and
defendant had no role in plaintiff's admission to Alamance Health
Care Center. He stated he visited plaintiff daily and never saw
defendant visit plaintiff. Randy Perkins also testified that while
plaintiff was at Alamance Health Care Center, he and his brother
and sister provided plaintiff with toiletries and other
necessities, and that his sister did plaintiff's laundry.
Carol Allen, an employee of Alamance Health Care Center,
testified that she saw defendant visit plaintiff "[n]o more than
twice" while plaintiff stayed there.
Stephanie Blackburn (Ms. Blackburn) testified that in the
first week of July 2000 defendant came to Ms. Blackburn's home and
they had a discussion in which defendant told Ms. Blackburn that
plaintiff was in a nursing home and that defendant was seeing
another man. Ms. Blackburn testified that defendant told her she
wished that she had met the other man years ago. She also told Ms.
Blackburn that she had been to see an attorney to find out about
her rights in divorcing plaintiff.
Defendant testified that she moved from the family residence
in October 1999, when plaintiff was released from Alamance Health
Care Center. She denied that she ever had a conversation with
plaintiff at the hospital when Randy Perkins was present. She
testified she visited plaintiff at the hospital two or three times
a week and later regularly visited him at Alamance Health Care
Center. She also talked with him by telephone daily. Defendanttestified to several violent incidents when plaintiff attacked and
threatened her during their marriage. When asked if plaintiff ever
deeded the farm to her, defendant responded, "He didn't even put my
name on things he promised me[.]"
Kathleen Brothers testified that she went with defendant to
visit plaintiff in the hospital and at Alamance Health Care Center
and that some weeks they went as often as three times a week.
The trial court entered a judgment of divorce dated 1
September 2000 and made the following pertinent findings of fact:
6. The plaintiff was admitted to
Alamance Regional Medical Center hospital on
June 21, 1999.
7. On June 21, 1999 at the hospital,
the defendant told the plaintiff that he could
not return to the marital residence unless he
deeded certain property of his to the
defendant. The plaintiff never deeded the
property to the defendant nor did he take any
action to deed the property to the plaintiff.
8. On July 8, 1999 the plaintiff gave
his Health Care Power of Attorney and a
general Power of Attorney to his son, Randy
Perkins. On that same day the plaintiff
executed a revocation of the Power of Attorney
he had previously issued in favor of the
defendant.
9. On July 22, 1999 the plaintiff was
discharged from the hospital and went to
Alamance Health Care Center.
10. The defendant told Stephanie
Blackburn in the first week of July 2000 when
the defendant came to Ms. Blackburn's
residence that she had a Mexican boyfriend.
The defendant further stated that she wished
that she had met him years ago. On that
occasion defendant told Ms. Blackburn that she
had been to see an attorney to find out about
her rights in divorcing plaintiff.
11. While the plaintiff was at Alamance
Health Care Center, the defendant did not do
the plaintiff's laundry. The plaintiff's
children provided the plaintiff with what
toiletries or other necessities plaintiff
needed and they did the plaintiff's laundry.
12. The plaintiff and defendant
separated from each other on June 21, 1999 and
have at no time resumed the marital
relationship since said date.
13. The defendant had the intention of
remaining separate and apart on June 21, 1999.
14. The court does not find the
defendant's testimony about her intentions or
the date of separation credible.
The trial court concluded that plaintiff was entitled to an
absolute divorce, and granted plaintiff an absolute divorce and
ordered that the parties' claims for a declaratory judgment,
equitable distribution, alimony and postseparation support in a
previously filed action survive the entry of judgment. From this
order, defendant appeals.
Plaintiff died following the divorce hearing and his son,
Randy Perkins, executor of the Estate of William James Perkins, was
substituted as plaintiff by consent of the parties.
Defendant raised thirteen assignments of error but in her
brief to our Court, she addressed only nine assignments of error;
therefore, the remaining arguments are deemed abandoned. N.C. R.
App. P. 28(a) ("Questions raised by assignments of error in appeals
from trial tribunals but not then presented and discussed in a
party's brief are deemed abandoned.").
N.C. Gen. Stat. § 50-6 (1999) provides that parties to a
marriage may obtain an absolute divorce "on the application ofeither party, if and when the husband and wife have lived separate
and apart for one year, and the plaintiff or defendant in the suit
. . . has resided in the State for a period of six months." "The
words 'separate and apart,' as used in G.S. 50-6, mean that there
must be both a physical separation and an intention on the part of
at least one of the parties to cease the matrimonial cohabitation."
Myers v. Myers, 62 N.C. App. 291, 294, 302 S.E.2d 476, 479 (1983)
(citing Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951) and
Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976)). The
issues in the case before us deal with the parties' date of
separation.
I.
Defendant contends by her first assignment of error that the
trial court erred in admitting Randy Perkins' testimony as to a
conversation between plaintiff and defendant on 21 June 1999,
because the testimony is inadmissible hearsay.
Randy Perkins testified, over defendant's objection, that on
21 June 1999 he overheard a conversation between plaintiff and
defendant at Alamance Regional Medical Center in which defendant
said to plaintiff that "[y]ou needn't be thinking about coming home
for me to take care of you, unless you sign the farm over to me."
Randy Perkins testified that plaintiff responded, "[t]hat's not
going to happen."
Although defendant concedes in her brief to our Court that
"[d]efendant's alleged statement, her part of the conversation, was
admissible under Rule 801 as an admission of a party opponent," defendant argues that plaintiff's statement was inadmissible
hearsay. However, defendant has failed to cite any authority to
support her argument in violation of N.C.R. App. P. 28(b)(5), which
requires that the argument contain citations of the authorities
upon which the appellant relies. Since defendant has failed to
cite authority in support of her argument, we deem this assignment
of error to be abandoned.
See Byrne v. Bordeaux, 85 N.C. App. 262,
354 S.E.2d 277 (1987);
Wilson v. Wilson, 134 N.C. App. 642, 518
S.E.2d 255 (1999).
II.
Defendant contends by her second, third and fourth assignments
of error that the trial court erred in admitting into evidence
plaintiff's 8 July 1999 power of attorney, plaintiff's revocation
of power of attorney, and plaintiff's living will and health care
power of attorney because these documents are not relevant proof of
the parties' intent to separate.
"'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401
(1999). Generally, "[a]ll relevant evidence is admissible[.]"
N.C. Gen. Stat. § 8C-1, Rule 402 (1999). To be relevant evidence,
"it is not required that the evidence bear
directly on the question in issue, and it is
competent and relevant if it is one of the
circumstances surrounding the parties, and
necessary to be known to properly understand
their conduct or motives, or to weigh the
reasonableness of their contentions."
Speizman Co. v. Williamson, 12 N.C. App. 297, 305, 183 S.E.2d 248,
253
, cert. denied, 279 N.C. 619, 184 S.E.2d 113 (1971) (quoting
Bank v. Stack, 179 N.C. 514, 103 S.E. 6 (1920)).
Although rulings by the trial court "on relevancy technically
are not discretionary and therefore are not reviewed under [an]
abuse of discretion standard . . . , such rulings are given great
deference on appeal."
State v. Wallace, 104 N.C. App. 498, 502,
410 S.E.2d 226, 228 (1991),
disc. review denied, 331 N.C. 290, 416
S.E.2d 398,
cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992);
see State v. Lotharp, 148 N.C. App. 435, 444, 559 S.E.2d 807, 812
(2002).
Defendant argues that the evidence at issue "had no tendency
to make the existence of any fact in issue more likely than it
would be without the evidence." Defendant also argues that the
trial court erred in admitting this evidence to prove the existence
of a condition at another time.
The fact of consequence in this appeal is the date of
separation of the parties. Plaintiff's transfer of control of his
personal affairs from defendant to Randy Perkins shortly after
telling defendant that he would not sign the farm over to her on 21
June 1999 is a manifestation of his intent to remain separate and
apart from defendant, and is relevant in determining plaintiff's
intent to separate his personal affairs from defendant and to the
date of the parties' separation.
The trial court was permitted to
consider all relevant evidence when determining the date of
separation, and from that evidence draw its own inferences.
SeeLin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 10-11 (1993).
The trial court did not err in admitting these documents into
evidence. Defendant's second, third and fourth assignments of
error are overruled.
Defendant also argues by her tenth assignment of error that
the trial court erred in finding of fact number eight that "[o]n
July 8, 1999 the plaintiff gave his Health Care Power of Attorney
and a general Power of Attorney to his son, Randy Perkins. On that
same day the plaintiff executed a revocation of the Power of
Attorney he had previously issued in favor of the defendant."
Defendant contends this finding is based on insufficient and
irrelevant evidence because this evidence does not clearly show an
intent to separate on 19 June 1999. As we have previously
determined, this circumstantial evidence is relevant to show
plaintiff's intent to separate his personal affairs from defendant.
This
assignment of error is overruled.
III.
Defendant contends in her seventh assignment of error that the
trial court's finding of fact number twelve and conclusion of law
number two are not based on sufficient evidence. The trial court
determined in finding of fact number twelve that "plaintiff and
defendant separated from each other on June 21, 1999 and have at no
time resumed the marital relationship since said date." The trial
court then concluded that "plaintiff is entitled to an absolute
divorce."
"Upon appellate review of a case heard without a jury, thetrial court's findings of fact are conclusive on appeal if there is
evidence to support them, even though the evidence might sustain a
finding to the contrary."
Lemons v. Lemons, 112 N.C. App. 110,
114, 434 S.E.2d 638, 641 (1993),
disc. review denied, 335 N.C. 556,
441 S.E.2d 117 (1994) (citing
Chandler v. Chandler, 108 N.C. App.
66, 422 S.E.2d 587 (1992)).
"If the evidence allows different
inferences to be drawn therefrom, the trial judge determines which
inferences shall be allowed, and this determination is binding on
the appellate courts."
Lin, 108 N.C. App. at 775, 425 S.E.2d at
10-11. Therefore, although conflicting evidence was presented at
trial as to the date of separation, finding of fact twelve is
supported by competent evidence in the record and is conclusive on
appeal.
Defendant further argues the trial court erred in its findings
of fact and conclusion because no direct evidence was introduced as
to the date of the separation. However, "[a] person's intent is
seldom provable by direct evidence, and must usually be shown
through circumstantial evidence."
State v. Compton, 90 N.C. App.
101, 104, 367 S.E.2d 353, 355 (1988).
Intent can be shown by
"'proving facts from which the fact sought to be proven may be
inferred.'"
Bowes v. Bowes, 287 N.C. 163, 173-74, 214 S.E.2d 40,
46 (1975) (citations omitted). The trial court did not err in
inferring the date of separation based upon plaintiff's evidence
concerning the date of separation. Further
, although defendant
claims she offered direct evidence that the date of separation was
19 October 1999, "'[a] person's testimony regarding [her intent]. . . is competent evidence, but it is not conclusive[.]"
Burke v.
Harrington, 35 N.C. App. 558, 560, 241 S.E.2d 715, 717 (1978)
(citations omitted). Rather, the trial court must consider all
surrounding circumstances as well as the conduct of the parties.
Id. In this case, although conflicting evidence, direct and
circumstantial, was presented as to the date of separation, the
trial court found plaintiff's evidence more credible and explained
in finding of fact fourteen that it "does not find the defendant's
testimony about her intentions or the date of separation credible."
Defendant's seventh assignment of error is overruled.
IV.
Defendant argues by her eighth assignment of error that the
trial court erred in denying defendant's motion to stay execution
of judgment pending appeal.
N.C. Gen. Stat. § 1A-1, Rule 62(d) (1999) states in part that
"[w]hen an appeal is taken, the appellant
may obtain a stay of
execution . . . by proceeding in accordance with and subject to the
conditions of G.S. 1-289, G.S. 1-290, G.S. 1-291, G.S. 1-292, G.S.
1-293, G.S. 1-294, and G.S. 1-295." (emphasis added). Because the
General Assembly used the word "may," the statute indicates that
whether to allow a stay of execution is within the discretion of
the trial court.
Campbell v. Church, 298 N.C. 476, 483, 259 S.E.2d
558, 563 (1979). "[T]he use of 'may' generally connotes permissive
or discretionary action and does not mandate or compel a particular
act."
Id. (citing
Felton v. Felton, 213 N.C. 194, 195 S.E. 533 12
(1938)). As plaintiff states in his brief, defendant did not"present any grounds to the Trial Court which would have justified
a stay, nor has the defendant offered any such grounds in her
brief[.]"
The trial court did not abuse its discretion in denying
defendant's request for a stay. Defendant's eighth assignment of
error is without merit.
V.
By her ninth assignment of error, defendant contends the trial
court erred in finding that
[o]n June 21, 1999 at the hospital, the
defendant told the plaintiff that he could not
return to the marital residence unless he
deeded certain property of his to the
defendant. The plaintiff never deeded the
property to the defendant nor did he take any
action to deed the property to the plaintiff.
Defendant again fails to cite any authority in support of her
argument and this argument is therefore abandoned. Defendant
further has not properly preserved this issue for our review
because what defendant is now arguing was not assigned as error on
appeal as required by N.C.R. App. P. 10(a) ("[T]he scope of review
on appeal is confined to a consideration of those assignments of
error set out in the record on appeal[.]"). This
assignment of
error is overruled.
VI.
Defendant argues by her twelfth assignment of error that the
trial court erred in entering judgment because plaintiff did not
present any evidence as to marriage and residence in this State and
therefore has failed to meet the statutory requirements for an
absolute divorce pursuant to N.C. Gen. Stat. §§ 50-6 and 50-8. We disagree. "'An admission in a pleading or a stipulation
admitting a material fact becomes a judicial admission in a case
and eliminates the necessity of submitting an issue in regard
thereto to the jury.'"
Despathy v. Despathy, ___ N.C. App. ___,
___, 562 S.E.2d 289, 291 (2002) (quoting
Crowder v. Jenkins, 11
N.C. App. 57, 62, 180 S.E.2d 482, 485 (1971)). "Judicial
admissions 'are binding on the pleader as well as the court.'"
Id.
(quoting
Universal Leaf Tobacco Co. v. Oldham, 113 N.C. App. 490,
493, 439 S.E.2d 179, 181,
disc. review denied, 336 N.C. 615, 447
S.E.2d 412 (1994)).
In this case, plaintiff alleged in his verified complaint that
he had been a resident of North Carolina for at least six
consecutive months preceding the filing of the complaint and that
plaintiff and defendant were lawfully married on 31 May 1986.
Defendant admitted these allegations in her answer and did not
contest these issues at trial. Defendant's admissions are binding
upon her. Defendant's final assignment of error is without merit.
We affirm the trial court's judgment of divorce.
Affirmed.
Judges GREENE and CAMPBELL concur.
Report per Rule 30(e).
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