1. Divorce--separation agreement--alimony--cohabitation
The trial court erred by concluding as a matter of law that plaintiff wife had cohabitated
as defined under N.C.G.S. § 50-16.9, thus allowing defendant husband to stop paying plaintiff
alimony in accordance with the parties' separation agreement, because the trial court's order
lacked adequate findings of fact to support a conclusion of cohabitation when the findings were
mere recitations of testimony and evidence.
2. Divorce--separation agreement--no interference provision
The trial court erred by concluding that defendant husband had not breached the parties'
unincorporated separation agreement with regard to the “no interference” provision based on
plaintiff wife's conduct even though it found defendant's conduct would be a violation of the
clause, because: (1) breach by one party does not automatically excuse the other party's
performance under the separation agreement; (2) the parties' “no interference” provision is
independent from any other provision of their separation agreement, and there is nothing to
indicate that a failure by plaintiff to abide by any provision authorizes defendant to breach the
“no interference” provision; and (3) there was no conduct by plaintiff that would excuse
defendant's admitted conduct.
3. Divorce--separation agreement--time and method of payment provisions
The trial court did not err by failing to find that defendant husband breached the time and
method of payment provisions of the separation agreement even though defendant failed to pay
plaintiff wife by direct deposit or by the first of the month in either May or June 2000, because:
(1) to be actionable, the breach must substantially defeat the purpose of the contract or be
characterized as a substantial failure to perform, and plaintiff received the support payments; and
(2) while the deviation in method of payment might have been inconvenient, the deviation did
not substantially defeat the purpose of the agreement, nor was it a substantial failure to perform.
4. Costs--attorney fees--enforcement of separation agreement
Although the trial court did not err by failing to award plaintiff wife attorney fees based
on plaintiff's claims being denied by the trial court, this issue may be reconsidered by the trial
court in light of the Court of Appeals' conclusion that defendant breached the “no interference”
clause of the parties' separation agreement.
The Sandlin Law Firm, by Deborah Sandlin and John Patrick
McNeil, for plaintiff-appellant.
Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan
McGirt, for defendant-appellee.
EAGLES, Chief Judge.
This is an appeal from an order, issued after a bench trial,
concluding that the defendant had not breached the parties'
separation agreement. Plaintiff argues on appeal: (1) that the
trial court erred as a matter of law in concluding that plaintiff
was cohabiting, (2) that the findings of fact were not supported by
competent evidence, (3) that the court erred in concluding that
defendant had not breached the “no interference” provision, (4)
that the court erred in concluding that defendant had not breached
the time and method of payment provisions and (5) that the court
erred in denying the plaintiff's request for attorneys' fees.
Plaintiff and defendant were married on 22 March 1992 and
separated on 8 July 1998. The parties are the parents of two minor
children. Plaintiff and defendant were granted a divorce on 3
March 2000. An “Interim Separation Agreement” was entered into by
the parties on 11 April 2000. This agreement included detailed
provisions related to alimony, child support and a “no
interference” provision. Under the agreement, defendant was
obligated to pay alimony and child support for their two children
to the plaintiff by direct deposit from his bank account to hers on
the first day of each month, commencing 1 May 2000. The agreement
permitted termination of alimony payments upon the occurrence of
the first of a list of events. One of these triggering events was
“cohabitation by Wife (plaintiff), as that term is defined in
N.C.G.S. § 50-16.9.” The agreement also provided that neitherparty was to molest or interfere with the other party in any
manner.
Defendant paid the alimony and child support in May and June
2000, but not in the manner prescribed in the agreement. Instead
of using the direct deposit method, the defendant paid plaintiff by
personal check and payment was late. Plaintiff received the May
payments around 4 May 2000 and the June payments around 12 June
2000. During this time, plaintiff and defendant communicated with
each other extensively via telephone and email and less frequently
in person. The parties' communication was very strained and rude.
Also during this time, plaintiff began dating Mr. Parker Bowers.
At the end of June, defendant's attorney notified plaintiff by
letter that defendant would no longer make the alimony payments
because of the plaintiff's cohabitation with Mr. Bowers. On 7
August 2000, plaintiff filed a complaint alleging breach of
contract and seeking damages, specific performance, attorneys'
fees, a temporary restraining order and a preliminary injunction.
In his answer, defendant denied any breach and further pled
plaintiff's cohabitation as a bar to alimony after June 2000, as
allowed by the separation agreement. The trial court denied
plaintiff's claims in an order entered 20 September 2001.
Plaintiff appeals.
[1] Plaintiff contends that the trial court erred as a matter
of law in concluding that plaintiff had cohabited as defined in
N.C. Gen. Stat. § 50-16.9. The parties' separation agreement
allowed defendant to stop paying plaintiff alimony upon the
occurrence of any one of several events, including “cohabitation byWife, as that term is defined in N.C.G.S. § 50-16.9.” N.C. Gen.
Stat. § 50-16.9(b) says:
As used in this subsection, cohabitation
means the act of two adults dwelling together
continuously and habitually in a private
heterosexual relationship, even if this
relationship is not solemnized by marriage, or
a private homosexual relationship.
Cohabitation is evidenced by the voluntary
mutual assumption of those marital rights,
duties, and obligations which are usually
manifested by married people, and which
include, but are not necessarily dependent on,
sexual relations. Nothing in this section
shall be construed to make lawful conduct
which is made unlawful by other statutes.
N.C. Gen. Stat. § 50-16.9(b) (2001). Plaintiff argues that the
trial court did not properly apply this statute, because it relied
on findings that merely evidenced a dating relationship between
plaintiff and Parker Bowers. We disagree.
Plaintiff's argument focuses on statutory language from the
first sentence, “dwelling together continuously and habitually.”
Plaintiff discounts that the statute's second sentence provides
that cohabitation is evidenced by certain acts. N.C. Gen. Stat. §
50-16.9(b). “The rules of statutory construction require
presumptions that the legislature inserted every part of a
provision for a purpose and that no part is redundant.” Hall v.
Simmons, 329 N.C. 779, 784, 407 S.E.2d 816, 818 (1991). N.C. Gen.
Stat. § 50-16.9(b) clearly says that cohabitation is evidenced by
“the voluntary mutual assumption of those marital rights, duties,
and obligations which are usually manifested by married people, and
which include, but are not necessarily dependent on, sexual
relations.” N.C. Gen. Stat. § 50-16.9(b). In order for the trial
court to conclude that cohabitation has occurred, it should makefindings that the type of acts included in the statute were
present.
While we conclude that the trial court applied the correct
standard, its conclusions based on that standard must still be
supported by adequate findings of fact. Here, the trial court's
order lacks adequate findings of fact to support a conclusion of
cohabitation because the findings were mere recitations of
testimony and evidence. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
requires that “[i]n all actions tried upon the facts without a jury
. . ., the court shall find the facts specially and state
separately its conclusions of law thereon and direct the entry of
the appropriate judgment.” N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
(2001). This Court has found that findings that merely
recapitulate the testimony or recite what witnesses have said do
not meet the standard set by the rule. Chloride, Inc. v.
Honeycutt, 71 N.C. App. 805, 323 S.E.2d 368 (1984). Here, the
trial court made several findings similar to the following:
11. Several witnesses for Defendant,
including a private detective hired by
Defendant, and Bowers' former girlfriend who
lives in the same neighborhood, testified that
they had seen vehicles known to be operated by
Bowers, including a truck with the name of
Bowers' employer emblazoned on it, in
Plaintiff's driveway or in Plaintiff's garage
overnight on numerous occasions.
12. The private detective's report
indicated that a vehicle known to be driven by
Bowers was at Plaintiff's house overnight on
May 17, 2000; May 18, 2000; May 24, 2000; May
25, 2000; May 26, 2000; May 30, 2000; May 31,
2000; June 2, 2000; June 3, 2000; June 6,
2000; June 9, 2000; June 13, 2000; and June
22, 2000.
These findings are inadequate as they are “mere recitations of the
evidence and do not reflect the processes of logical reasoning.”
Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337,
339 (2000). As the findings of fact regarding cohabitation are
inadequate, the conclusions of law that the plaintiff cohabited and
that the defendant was relieved from paying alimony cannot stand.
Accordingly, we reverse and remand to the trial court for further
findings of fact consistent with this opinion.
[2] Plaintiff also argues that the trial court erred in
concluding that defendant had not breached the separation agreement
with regard to the “no interference” provision of the agreement.
Separation agreements that have not been incorporated into a
divorce judgment are governed by general contract principles and
are enforceable and modifiable only under such principles. Jones
v. Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001). The elements
of breach of contract are (1) the existence of a valid contract and
(2) breach of the terms of the contract. Poor v. Hill, 138 N.C.
App. 19, 26, 530 S.E.2d 838, 843 (2000). In order for a breach of
contract to be actionable it must be a material breach, one that
substantially defeats the purpose of the agreement or goes to the
very heart of the agreement, or can be characterized as a
substantial failure to perform. Fletcher v. Fletcher, 123 N.C.
App. 744, 752, 474 S.E.2d 802, 807-08 (1996), disc. rev. denied,
345 N.C. 640, 483 S.E.2d 706 (1997). The trial court's decision as
to whether a breach is material is a conclusion of law and is
therefore not binding on appeal, but is reviewable as any other
conclusion of law. Id. at 752, 474 S.E.2d at 807. The “no interference” provision of the separation agreement
provided:
1. The parties may and shall continue to
live apart for the rest of their lives. Each
shall be free from interference, direct or
indirect, by the other as fully as though
unmarried. Each may for his or her own
separate benefit engage in any employment,
business or profession he or she may choose.
2. Neither party will molest or interfere
with the other party in any manner, at any
time, nor will either party compel or attempt
to compel the other party to cohabit or dwell
with him or her. Neither party will go on or
about the premises of the other without his or
her consent.
The trial court found:
25. Defendant admitted in his answer as
well as in his trial testimony to making the
following statements about or to Plaintiff:
“Your day is on the way,”; “Are you scared
yet?”; “It's finally time for you to pay for
what you've done,” and, “You are getting ready
to see difficult. You are clueless. Get your
head out of his (Bowers') rear-end and look
around.” However, Defendant denied in his
answer as well as in his trial testimony that
said remarks were in any way verbally abusive
or made as a threat to Plaintiff and this
Court finds that the evidence at trial tended
to show that there was obnoxious conduct
between both parties, and that even though
Defendant, by his own admissions and
testimony, did not always conduct himself in
a manner that was best for the parties'
children, neither did Plaintiff.
The trial court apparently did find that the conduct on the part of
the defendant would be a violation of the “no interference clause”
but did not find breach due to plaintiff's conduct.
However, breach by one party does not automatically excuse the
other party's performance under the separation agreement. In Smith
v. Smith, it was held, (1) that it is not every violation of the
terms of a separation agreement by one spouse
that will exonerate the other from
performance; (2) that in order that a breach
by one spouse of his or her covenants may
relieve the other from liability from the
latter's covenants, the respective covenants
must be interdependent rather than
independent; and (3) that the breach must be
of a substantial nature, must not be caused by
the fault of the complaining party, and must
have been committed in bad faith.
Smith v. Smith, 225 N.C. 189, 197-98, 34 S.E.2d 148, 153 (1945).
In Smith, the Court found that the husband's duty to pay alimony
was independent of the wife's duty to not interfere with her former
husband. Id. at 198, 34 S.E.2d at 154. Here, the “no
interference” provision of the separation agreement is independent
from any other provision of the agreement. There is nothing to
indicate that a failure by the plaintiff to abide by any provision
authorizes the defendant to breach the “no interference” provision.
We see no conduct by the plaintiff which would excuse the
defendant's admitted conduct. We conclude that the defendant's
conduct did rise to the level of “interference, molestation and
harassment.” Accordingly, we reverse the trial court's conclusion
that defendant had not substantially interfered with or harassed
plaintiff.
[3] Plaintiff also argues that the trial court erred in
failing to find that defendant breached the time and method of
payment provisions of the separation agreement. Breach of contract
is a conclusion of law reviewable by this Court. Fletcher, 123
N.C. App. at 752, 474 S.E.2d at 807. There was a breach of the
agreement's terms here. It is undisputed that defendant failed to
pay the plaintiff by direct deposit or by the first of the month ineither May or June. However, to be actionable, the breach must
substantially defeat the purpose of the contract or be
characterized as a substantial failure to perform. Id. at 752, 474
S.E.2d at 807-08. Here, the plaintiff did receive the required
support payments. While the deviation in method of payment might
have been inconvenient, the deviation did not substantially defeat
the purpose of the agreement nor was it a substantial failure to
perform. Accordingly, this assignment of error fails.
[4] Plaintiff further argues that the trial court erred in
failing to award her attorneys' fees. The separation agreement
allowed:
In the event either party shall institute
an action to enforce the provisions of this
agreement, the party prevailing in said
action, whether by adjudication or settlement,
shall be entitled to recover their suit costs,
including attorney's fees at a reasonable
hourly rate, from the other party.
The separation agreement only allows the award of attorneys' fees
to the prevailing party in an action. The trial court did not have
the authority to modify this contract. Since plaintiff's claims
were denied by the trial court, the trial court could not award
attorneys' fees to the plaintiff. However, this issue may be
reconsidered by the trial court in light of our conclusion that
defendant breached the “no interference” clause of the separation
agreement.
Affirmed in part, remanded in part.
Judges McCULLOUGH and STEELMAN concur.
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