Summary
holding that the phrase "live continuously separate and apart" contained in a separation agreement had a definite meaning when viewed objectively
Summary of this case from Gilmore v. GarnerOpinion
No. 486A87
Filed 3 February 1988
Husband and Wife 12 — separation agreement — property settlement — living separate and apart — effect of sexual relations A provision of a separation agreement which required the wife to transfer to the husband her interest in the marital residence if the parties "lived continuously separate and apart" for a full year after the date of the agreement was not enforceable where the parties engaged in sexual intercourse during the one-year period, since a husband and wife do not live "separate and apart" if they have sexual relations.
APPEAL by Larry N. Higgins pursuant to N.C.G.S. 7A-30 (2) from an opinion by a divided panel of the Court of Appeals at 86 N.C. App. 513, 358 S.E.2d 553 (1987). Heard in the Supreme Court 9 December 1987.
Hatfield Hatfield, by Kathryn K. Hatfield, for plaintiff-appellee.
McNany, Clifford, Clendenin Parks, by Joy R. Parks, for defendant appellant.
Justice FRYE concurring in result.
Justice MARTIN joins in this concurring opinion.
Justice MEYER dissenting.
Justice WHICHARD joins in this dissenting opinion.
Justice WHICHARD dissenting.
Appellant-husband and appellee-wife were married on 10 March 1979 and separated in November of 1983. The parties executed a separation agreement on 13 December 1983 which purported, in part, to distribute the marital property owned by the parties pursuant to N.C.G.S. 50-20 (d).
The basis of the dispute before this Court concerns Paragraph 4 of this "Agreement and Deed of Separation," which reads in part as follows:
It is agreed that the residence and lot located at 3207 Edgewater Drive, Greensboro, North Carolina, shall remain titled in the name of Larry N. Higgins and JoAnne Higgins for a period of one year from the date of this Agreement and it is agreed that if the parties have lived continuously separate and apart for that full period that in that event Mrs. Higgins shall transfer her interest in the residence and lot to Mr. Higgins as part of property settlement as provided herein. Mr. Higgins and Mrs. Higgins have agreed upon a division of all their personal property and Mrs. Higgins agrees to remove all the personal property that she shall be entitled to from the residence located at 3207 Edgewater Drive within a reasonable time after execution of this agreement. (Emphasis added.)
This agreement also contained mutual releases of property rights and a waiver of equitable distribution.
In December 1984, one year after the execution of the separation agreement, the appellant asked the appellee to transfer her interest in the marital residence to him, in conformity with the fourth paragraph. When she refused to do so, he brought an action for a declaratory judgment, asking the court to order the appellee to comply with the terms of paragraph four. In response, the appellee brought an action for absolute divorce and for equitable distribution of the marital residence and certain personal property. The two actions were consolidated for hearing and Mrs. Higgins made a motion for summary judgment.
The papers submitted by the appellee at the hearing on the motion for summary judgment showed the following: The appellee moved out of the marital residence upon execution of the separation agreement and the parties ceased living together at that time. However, during the one year period following execution of this agreement, the parties traveled to Tennessee and Florida together to attend car and t-shirt shows. At each of the shows, the parties shared a motel room for up to four days. In each of these instances, the parties engaged in one or more acts of sexual intercourse. Appellee also attended the funeral of appellant's brother with appellant in March 1984, driving to and from the funeral with appellant and sharing a room with him on that occasion for two nights.
Over the course of the remainder of 1984, the appellant and the appellee attended several events together. They took their daughter to the circus in February of 1984 and the appellee took the appellant to the hospital for minor surgery in March of the same year. During the course of these events, the parties engaged in several acts of sexual intercourse.
The appellant, while disputing the number of times, admitted engaging in intercourse with his wife during this time period. The parties also spent at least two nights together in the former marital residence during their one-year separation.
The district court granted the appellee's motion for summary judgment and dismissed the appellant's action. The Court of Appeals affirmed with a dissent. Mr. Higgins appealed to this Court.
The resolution of this appeal depends on the interpretation of the words of the agreement "if the parties have lived continuously separate and apart for that full period" (one year). It is undisputed that the parties engaged in sexual intercourse during that period. If these words are not ambiguous and to live separate and apart means the parties may not engage in sexual intercourse during that period, summary judgment was properly granted for the appellee. We believe that we are required to hold under Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978) and State v. Gossett, 203 N.C. 641, 166 S.E. 754 (1932), that the words are not ambiguous and the parties did not live continuously separate and apart during the year after the agreement was signed. In Murphy, the plaintiff brought an action for divorce on the ground of one year's separation. A separation agreement had been signed by the parties and the defendant brought a cross action to set it aside. The cross action was tried first. We held it was error for the district court to charge the jury that it took more than sexual intercourse for the parties to resume the marital relationship. In Gossett, the defendant was prosecuted for nonsupport of his wife. He defended on the ground that he and his wife had signed a separation agreement which relieved him of the duty to support her. This Court found no error in a charge in which the jury was told that if they found the parties entered into an agreement in which they agreed to live separate and apart and the defendant visited his wife on several occasions and had intercourse with her, they should treat the separation agreement as if it were of no validity.
Murphy and Gossett hold that sexual intercourse is all it takes to void an agreement in which the parties agree to live separate and apart. We believe these cases hold there is a precise meaning to "living separate and apart" and a husband and wife do not live separate and apart if they have sexual relations. The words as used in the separation agreement in this case are not ambiguous. The contingency upon which the husband was to receive the wife's interest in the marital residence did not occur. The wife was entitled to summary judgment in her favor.
The appellant contends and the dissents in the Court of Appeals and this Court say that this is an agreement drawn pursuant to N.C.G.S. 50-20 (d) which allows an agreement dividing property during the marriage. For that reason, says the appellant, the agreement in this case is enforceable although the parties had sexual relations within one year of the signing of the agreement. The appellant relies on Love v. Mewborn, 79 N.C. App. 465, 339 S.E.2d 487, disc. rev. denied, 317 N.C. 704, 347 S.E.2d 43 (1986) and Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984). We believe our decision in this case is consistent with N.C.G.S. 50-20 (d) as well as Love and Buffington. N.C.G.S. 50-20 (d) provides that married persons may provide for division of marital property while they are cohabiting. Love and Buffington hold that such agreements are enforceable under the statute. We do not hold in this case that such an agreement is unenforceable. The terms of the agreement in this case provide that for the defendant to receive the marital home the parties must live separate and apart for one year after the parties separate. They did not do this and under the terms of the agreement the appellant is not entitled to have the house conveyed to him. We do not hold that Murphy governs and the separation agreement is void. We do hold that at the time the agreement was executed Murphy and Gossett had defined "to live separate and apart" in such a way that the words meant that a husband and wife could not have intercourse if they were to live separate and apart. We hold the separation agreement should be enforced according to the meaning of these words.
The dissents would apply a subjective test to determine the intent of the parties at the time the separation agreement was made. See 1 E. Farnsworth, Contracts 7.9 (1982) for a discussion of the objective and subjective theories of assent. The dissents would have us attempt to search for the meaning the parties gave to the words regardless of the understanding which is normally given to them. In this case we believe we should use an objective test. The words "live continuously separate and apart" have a definite meaning. Larry Higgins' attorney could have told him the meaning of the words at the time the agreement was signed. A party to a contract should not be allowed to say he gave a different meaning to words which are not ambiguous.
We are advertent to N.C.G.S. 52-10.2 which overrules Murphy and Love. The effective date of that statute is 1 October 1987. We did not consider it in the resolution of this case.
The decision of the Court of Appeals is
Affirmed.