An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-551


Filed: 18 March 2003


v .                             Pitt County
                                No. 01 CVD 198

    Appeal by defendant from judgment entered 28 August 2001 by Judge Charles M. Vincent in District Court, Pitt County. Heard in the Court of Appeals 12 February 2003.

    McCotter, McAfee & Ashton, P.L.L.C., by Rudolph A. Ashton and Terri W. Sharp, for plaintiff-appellee.

    Owens, Rouse & Nelson, P.L.L.C., by Joseph B. Dupree, II, for defendant-appellant.

    WYNN, Judge.

    Vicky Lynn Dixon Hinchman appeals from an absolute divorce judgment contending that the trial court erred by: (1) failing to properly consider the totality of the circumstances, as required by N.C. Gen. Stat. § 52.10.2 (2002), in determining whether she and Mr. Hinchman had resumed marital relations; and (2) finding a separation date of 12 January 2000, where there was insufficient evidence in the record to support this finding. We find no error and, therefore, affirm the judgment of absolute divorce.
    The parties married in August 1997; however, on 11 January 2000, they argued violently resulting in Ms. Hinchman leaving themartial residence and seeking shelter with a friend. Three days later, she obtained a Domestic Violence Protective Order evicting Mr. Hinchman from the marital residence.
    On 7 November 2000, Mr. Hinchman filed an equitable distribution complaint alleging a separation date of 12 January 2000. Ms. Hinchman answered the complaint on 5 January 2001 admitting that 12 January 2000 was the date of separation. On 17 January 2001, Mr. Hinchman filed an absolute divorce complaint again alleging a separation date of 12 January 2000. On 16 March 2001, however, Ms. Hinchman filed an answer denying Mr. Hinchman's alleged separation date of 12 January 2000. On 2 August 2001, the absolute divorce action was tried before the Honorable Charles M. Vincent in the District Court, Pitt County. At trial, the sole issue was whether Mr. Hinchman could prove by the greater weight of the evidence that he and Ms. Hinchman had satisfied the statutory one year separation period to qualify for an absolute divorce, based upon a separation date of 12 January 2000.
    Mr. Henchman's evidence tended to show that following 11 January 2000, he and Ms. Hinchman did not live together again. He stated that at that time, it was his “intention [to] live permanently apart and separate from [Ms. Hinchman] forever.” Mr. Hinchman stated that despite the discussions of reconciliation, isolated acts of sexual intercourse, and therapy with a marriage counselor, he did not “waiver from [his] intention to live permanently separate and apart from [Ms. Hinchman]” after 12 January 2000.    Ms. Hinchman's evidence tended to show that Mr. Hinchman did not form the intent to remain separate and apart until 23 September 2000. According to Ms. Hinchman, she formed this opinion:
        Because we basically lived together the whole year. I was expecting him to move back in any day from the things he told me. He talked a lot about reconciliation. We worked on the yard together, we made plans, future plans together. [However,] September 23 was the last day he came over, brought dinner, cooked dinner, had wine with me, and made love to me.

    On direct examination, Ms. Hinchman testified that: (1) in February 2000, during her vacation with Mr. Hinchman in New York City, Mr. Hinchman told her that “he wanted to be with [her] forever”; (2) Mr. Hinchman introduced Ms. Hinchman as his wife to business partners in May 2000; (3) Mr. Hinchman wore his wedding band consistently; (4) Mr. Hinchman purchased furniture for the marital residence in July 2000; (5) Mr. Hinchman spent “no less than every other day” at the marital residence between January 2000 and September 2000; (6) Mr. Hinchman would occasionally wash his clothes, do yard work, shower, and eat dinner at the marital residence; (7) Mr. Hinchman commonly remained at the marital residence until 2:00 a.m.; and (8) Mr. Hinchman and she engaged in sexual intercourse “at least two or three times a week . . . during that whole period.”   (See footnote 1)  Ms. Hinchman also entered two exhibits intoevidence, an Easter card in which Mr. Hinchman signed “your husband,” and a photograph of Mr. Hinchman wearing his wedding band in July 2000. Moreover, two witnesses testified that they observed the parties acting consistent with the actions of a married couple after 12 January 2000.
    On 24 August 2001, the trial court entered a judgment of absolute divorce and made the following pertinent findings:
        (E)    That even though the parties had discussions about reconciling subsequent to [Mr. Hinchman] being evicted from the former marital residence pursuant to a Domestic Violence Protective Order, and even though they participated in marriage counseling after the date of separation, and even though [Mr. Hinchman] told [Ms. Hinchman] after the separation that he cared for her and missed her, [Mr. Hinchman] continued to intend to remain and live permanently separate and apart from [Ms. Hinchman];

        (F)    That the actions of the parties, and of [Mr. Hinchman] towards [Ms. Hinchman], subsequent to the separation that occurred on or about 12 January 2000, were consistent with attempts at reconciliation, but did not result in a resumption of cohabitation, and did not cause [Mr. Hinchman] to change his intention to live permanently separate and apart from [Ms. Hinchman].

Accordingly, the trial court made the legal conclusion that “[t]he separation, which began on or about 12 January 2000, is a separation contemplated by N.C.G.S. § 50-6, resulting in the entitlement of the plaintiff . . . to obtain an absolute divorce from the bonds of matrimony with defendant.” From this judgment,Ms. Hinchman appeals.
    By her first argument, Ms. Hinchman contends the trial court erred by failing to consider the totality of the circumstances as required by N.C. Gen. Stat. § 52.10.2 in determining whether the parties had resumed marital relations. We disagree.
    “Marriages may be dissolved . . . on the application of either party, if and when the husband and wife have lived separate and apart for one year.” N.C. Gen. Stat. § 52.6. Although reconciliation will “toll the one-year period of separation required for divorce,” the General Assembly has made it eminently clear that “isolated incidents of sexual intercourse between the parties [do not] constitute [a] resumption of marital relations.” See Fletcher v. Fletcher, 123 N.C. App. 744, 747, 474 S.E.2d 802, 804 (1996); N.C. Gen. Stat. § 52-10.2. Rather, a resumption of marital relations is “defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” N.C. Gen. Stat. § 52-10.2.
    In Fletcher, our Supreme Court held that the totality of circumstances test requires the trial court to “evaluate all the circumstances of a particular case.” Fletcher, 123 N.C. App. at 750, 474 S.E.2d at 806. The Fletcher Court held that “isolated factors no longer control in determining when parties have renewed the husband and wife relationship.” Instead, the Fletcher Court provided a list of non-determinative factors including whether the parties had: (1) moved back in together; (2) shared household chores; (3) indicated to friends or relatives that their problemshad been resolved; (4) accompanied each other to public places so as to hold themselves out as husband and wife; and (5) engaged in sexual relations. Notably, the Fletcher Court held that “evidence that the parties engaged in sexual intercourse three or four times during this six day period is in no way determinative.” Id.
    In the case sub judice, Ms. Hinchman argues the trial court erred by not properly considering the totality of circumstances as proscribed in the statute and Fletcher. This argument is without merit. The trial court's findings of fact are replete with considerations of the parties' sexual contact, counseling, socializing, business ventures, and reconciliation discussions. Thus, the record shows that the trial court considered the totality of the circumstances as mandated by statute and Fletcher. Accordingly, this assignment of error is overruled.
    By her second argument, Ms. Hinchman contends the trial court erred in finding a separation date of 12 January 2000, because there was insufficient evidence in the record to support this date of separation. We disagree.
    “Where the trial judge sits as judge and juror, his [or her] 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.” Hand v. Hand, 46 N.C. App. 82, 87, 264 S.E.2d 596, 599-600 (1980) (citations omitted). In the case sub judice, the record is replete with competent evidence that 12 January 2000 was the date of separation. For instance, after 12 January 2000 the parties never stayed together in the maritalresidence for the entirety of a night. Moreover, the trial court took judicial notice of Ms. Hinchman's 5 January 2001 answer to Mr. Hinchman's equitable distribution complaint, wherein Ms. Hinchman admitted that 12 January 2000 was the date of separation. Accordingly, because competent evidence exists to support the trial court's finding that 12 January 2000 was the date of separation, and this finding in turn supports the trial court's conclusions of law, this assignment or error is overruled. Consequently, we find no error in the judgment of absolute divorce.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    However, during the cross-examination of Mr. Hinchman the following colloquy transpired:

    Q.    Isn't true y'all had sex about, maybe, three times a week over the [period from] January 2000 through September 2000?

    A.    We never had sex three times a week while we weremarried.

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