Appeal by plaintiff from judgment entered 13 February 2003 by
Judge C. Christopher Bean in Dare County District Court. Heard in
the Court of Appeals 24 May 2004.
Windy H. Rose for plaintiff-appellant.
Sharp, Michael, Outten & Graham, L.L.P. by Jeanine C. Evans,
for defendant.
MARTIN, Chief Judge.
Plaintiff brought this action seeking divorce from bed and
board, equitable distribution and child custody and support. In
her answer, defendant moved to dismiss plaintiff's complaint,
alleging plaintiff's claims were barred by a Deed of Separation
entered into between the parties. Plaintiff appeals from an order
dismissing his claims and enforcing a separation agreement signed
by the parties on 1 February 2002.
The record, including evidence offered at the hearing on
defendant's motion to dismiss, tends to show that plaintiff and
defendant were married on 14 April 1984 and that one child was born
of the marriage. The parties separated on or about 2 November 2001when defendant and the parties' daughter left the marital
residence. Approximately two weeks later, defendant and the child
moved back into the marital residence and plaintiff moved to a
separate residence.
On 1 February 2002, the parties executed a written Deed of
Separation before a notary public. The agreement, inter alia,
provided for the parties' separation as well as settlement of the
issues of child custody and support, spousal support, and division
of the marital property. The following day, in accordance with a
provision of the agreement in which defendant agreed to lease a
portion of the marital residence to plaintiff for a term to expire
2 November 2002, plaintiff moved into a separate apartment located
in the downstairs of the marital residence, contemplated in the
agreement to be separate living quarters. Plaintiff moved out of
the downstairs unit of the residence on 25 August 2002. On 27
August 2002, he filed this action.
The sole issue on appeal is whether the trial court erred in
concluding that although the parties both resided in the marital
residence, albeit in separate living quarters, they did not
reconcile so as to invalidate the provisions of the separation
agreement. “[W]hen the trial court sits without a jury, the
standard of review on appeal is whether there was competent
evidence to support the trial court's findings of fact and whether
its conclusions of law were proper in light of such facts.”
Shear
v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845(1992).
A married couple can “execute a separation agreement not
inconsistent with public policy which shall be legal, valid, and
binding in all respects; provided, that the separation agreement
must be in writing and acknowledged by both parties before a
certifying officer.” N.C. Gen. Stat. § 52-10.1 (2003). “Questions
relating to the construction and effect of separation agreements
between a husband and wife are ordinarily determined by the same
rules which govern the interpretation of contracts generally” such
as ascertaining the intent of the contract.
Gilmore v. Garner, 157
N.C. App. 664, 666, 580 S.E.2d 15, 17-18 (2003).
However, the
executory terms of a separation agreement are terminated upon the
“resumption of the marital relation,”
In re Estate of Adamee, 291
N.C. 386, 391, 230 S.E. 2d 541, 545 (1976), which is defined by
N.C. Gen. Stat. § 52-10.2 (2003) as the “voluntary renewal of the
husband and wife relationship, as shown by the totality of the
circumstances.”
In
Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E.2d 802
(1996),
disc. review denied, 345 N.C. 640, 483 S.E.2d 706-707
(1997), this Court interpreted the phrase “totality of the
circumstances” as used in the statute as “focus[ing] on all the
circumstances of a particular case, rather than any one factor.”
Id. at 750, 474 S.E.2d at 806. In
Fletcher, the Court considered
such factors as (1) whether plaintiff moved back into the marital
home, (2) the duration of the alleged reconciliation, (3) whether
the couple shared household chores or responsibilities, (4) whetherthey held themselves out as husband and wife by accompanying each
other to public places, (5) if they indicated to family and friends
that they had reconciled, and (6) whether they engaged in sexual
intercourse. In addition, where the evidence regarding
reconciliation is conflicting, “the parties' mutual intent is an
essential element in deciding whether the parties were reconciled
and resumed cohabitation.”
Hand v. Hand, 46 N.C. App. 82, 87, 264
S.E.2d 597, 599,
disc. review denied, 300 N.C. 556, 270 S.E.2d 107
(1980).
In the present case, the parties executed a Deed of
Separation, which conformed to the requirements of N.C. Gen. Stat.
§ 52-10.2 on 1 February 2002. The agreement provided,
inter alia,
for plaintiff to move back into the marital home in separate living
quarters downstairs from defendant and their child. Defendant
testified that she agreed to this arrangement because plaintiff
indicated he could not afford to pay rent. The separate living
quarters occupied by plaintiff contained a bedroom, a living area,
a kitchenette, a half bathroom and an outside shower. A door with
a lock was installed between the upstairs and downstairs of the
house and this door remained locked most of the time, preventing
plaintiff from entering the upstairs living quarters except to
shower and at other times by special arrangement.
The Deed of Separation provided for plaintiff to pay certain
bills in lieu of rent for the separate apartment. In addition, he
paid for bottled water for the entire house and maid service for
the upstairs and downstairs of the residence. Plaintiff continuedperforming many of the same household chores he had taken care of
during the marriage such as maintenance of the yard, the vehicles,
the boat, the exterior of the home and some housecleaning. He also
cared for the family pet. In 2001, the parties filed a joint tax
return.
The parties attended a few events together; they attended a
Super Bowl party together at a friend's house, went to dinner at a
Pizza Hut with their daughter and her boyfriend, went to court
together twice after their daughter received a ticket, participated
in an anniversary party for her parents and went to get ice cream
together a few times. Although there is no evidence in the record
that they explicitly held themselves out as husband and wife, a
third party, looking at the marital residence from outside, might
not have realized they were living separately.
There is no indication from the evidence that either party
ever led family or friends to believe they had reconciled.
Plaintiff testified he told his friends he was separated but he was
trying to work things out with his wife and he never told friends
he had reconciled with defendant. In fact, during May 2002,
plaintiff told a woman he dated that he was separated from his
wife. Both parties testified they did not engage in sexual
intercourse after 2 November 2001.
Plaintiff concedes he did not sign the Deed of Separation
under duress. In fact, prior to signing the document, the parties
negotiated for approximately a week and each consulted with their
separate counsel. Even though plaintiff contends he signed theagreement only to facilitate reconciliation, the plain language of
the agreement manifests an intent by
both parties to live separate
and apart. Defendant testified she never intended to renew the
marital relationship even after plaintiff moved into the downstairs
unit.
The trial court made findings of fact in accord with the
foregoing evidence and concluded that the date of separation was 2
November 2001 and that the parties did not reconcile following the
execution of the agreement. The evidence supports the findings
which, in turn, support the trial court's legal conclusion that
under the totality of the circumstances, there was no renewal of
the relationship of husband and wife to terminate the executory
terms of the parties' separation agreement. Therefore, the trial
court properly dismissed plaintiff's claims for equitable
distribution.
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***