Opinion
No. 8618DC1058
Filed 4 August 1987
Husband and Wife 12 — separation agreement — resumption of sexual relations — provisions contingent on living separate and apart — invalidated The trial court properly granted summary judgment in favor of plaintiff wife on her complaint for an equitable distribution as to the marital residence where the parties had executed a separation agreement in which plaintiff wife agreed to transfer her interest in the marital home to defendant husband if they had lived continuously separate and apart for one year, and there was undisputed evidence that plaintiff and defendant engaged in sexual relations during the one year period. Sexual relations between spouses separated less than one year invalidate those obligations of the parties, pursuant to a separation agreement, that are contingent upon the requirement that the parties "live continuously separate and apart" for one year. N.C.G.S. 50-6.
APPEAL by defendant from Lowe, Judge. Judgment entered 26 May 1984 in District Court, GUILFORD County. Heard in the Court of Appeals 10 March 1987.
Hatfield Hatfield, by Kathryn K. Hatfield, attorney for Jo Anne W. Higgins.
Smith, Patterson, Follin, Curtis, James Harkavy, by Charles A. Lloyd and Martha E. Johnston, attorneys for Larry N. Higgins.
Judge ORR dissenting.
Plaintiff-wife and defendant-husband 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. sec. 50-20(d). Provision four of the agreement provided that:
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 Jo Anne W. 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 therein. 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 the execution of this agreement.
In accordance with provision four, plaintiff moved out of the marital residence shortly after signing the separation agreement. In the one-year period following execution of the agreement, plaintiff and defendant attended two car shows together, one in January 1984 and the other in March 1984. At each of the shows, the parties shared a hotel room for four days. Plaintiff also attended the funeral of defendant's brother with defendant in March 1984, driving to and from the funeral with defendant and sharing the same room with him for two nights at his parent's home. In February 1984, the parties took their daughter to the circus, and in March 1984, plaintiff took defendant to and from the hospital when defendant underwent minor surgery. Plaintiff testified that while participating in these activities the parties engaged in several acts of sexual intercourse. Defendant testified that he recalls engaging in only one act of sexual intercourse with the plaintiff during the time in question.
In December 1984, one year after execution of the separation agreement, defendant asked plaintiff to transfer her interest in the marital residence to him, in conformity with provision four. When she refused to do so, defendant sought a declaratory judgment from the trial court, holding provision four to be valid and ordering plaintiff to comply with the terms of the provision. In response, plaintiff brought suit against defendant seeking absolute divorce and equitable distribution of the marital residence and certain personal property, pursuant to N.C.G.S. sec. 50-20.
The parties consolidated their actions for a hearing by the district court. At the hearing, plaintiff orally moved for summary judgment contending that the sexual relations between her and defendant during the separation period ended her legal obligation to transfer her interest in the residence to defendant, and entitled her to summary judgment on this issue, as a matter of law. The trial court accepted plaintiff's argument, granted her motion for summary judgment, and dismissed defendant's action.
From the trial court's judgment, defendant appeals.
The sole issue on appeal is whether provision four was unambiguous, permitting the trial court to grant summary judgment for plaintiff on the issue of the provision's enforceability, as a matter of law.
"Summary judgment is proper when there is no genuine issue as to any material fact." G.S. 1A-1, Rule 56(e) (1983). It is a drastic remedy not to be granted "unless it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E.2d 214, 217 (1975). The burden is on the moving party to establish the lack of any triable issue of fact. Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Credit Union v. Smith, 45 N.C. App. 432, 437, 263 S.E.2d 319, 322 (1980).
The portion of provision four at issue states:
[I]t is agreed that if the parties have lived continuously separate and apart for that full period [of one year] that in that event Mrs. Higgins shall transfer her interest in the residence and lot to Mr. Higgins as a part of [the] property settlement as provided herein.
Plaintiff contends that by engaging in sexual relations during the one-year separation period, she and defendant failed to live "continuously separate and apart for the full period" as required by provision four. Underlying plaintiff's contention is the premise that the phrase "live continuously separate and apart" must be given its legal definition, derived from N.C.G.S. sec. 50-6.
N.C.G.S. sec. 50-6 is a divorce statute which permits the granting of absolute divorce when a husband and wife have lived separate and apart for one year. Prior cases have held that under N.C.G.S. sec. 50-6 this separation requirement will not be met if during the one-year period the couple engages in sexual relations. Ledford v. Ledford, 49 N.C. App. 226, 229-30, 271 S.E.2d 393, 396-97 (1980). See also Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978); In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976). Undisputed evidence that plaintiff and defendant engaged in sexual relations during the one-year period was before the trial court; consequently, if the legal definition derived from N.C.G.S. sec. 50-6 applies, summary judgment for plaintiff on this issue would be proper.
Generally, a separation agreement is construed by the same rules of construction as an ordinary contract. See Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955). Two basic principles of contract construction are (1) "that a contract must be construed as a whole, considering each clause and word with reference to all other provisions and giving effect to each whenever possible," and (2) "that the common or normal meaning of language will be given to the words of a contract" absent evidence disclosing an intent that they be given their technical or legal meaning. Marcoin, Inc. v. McDaniel, 70 N.C. App. 498, 504, 320 S.E.2d 892, 897 (1984), disc. rev. denied, 312 N.C. 797, 325 S.E.2d 631 (1985).
Once these contract principles are applied, "[t]he general rule is that where the entire contract is in writing and the intention of the parties is to be gathered from it, the effect of the instrument is a question of law, but if the terms of the agreement are equivocal or susceptible of explanation by extrinsic evidence the jury under proper instructions may determine the meaning of the language employed." Goodyear v. Goodyear, 257 N.C. 374, 380, 126 S.E.2d 113, 118 (1962); Owens v. Little, 13 N.C. App. 484, 186 S.E.2d 182 (1972).
At issue is the effect of the language in the separation agreement "if the parties have lived continuously separate and apart" on Mrs. Higgins' ownership interest in the marital home considering that the parties had sexual relations within a year of entering into the agreement. We have previously held that, as a matter of law, sexual relations between spouses during the separation period negates the requirement under G.S. 50-6 that the parties live separate and apart for purposes of an absolute divorce. Ledford, supra. The case sub judice involves the effect of sexual relations on a provision in a separation agreement involving a property settlement, and not on absolute divorce. The legal significance given to sexual relations between separated spouses in light of the "live continuously separate and apart" language in G.S. sec. 50-6 — i.e. that sexual relations during the one-year separation period means that the parties are no longer living separate and apart for purposes of absolute divorce — is persuasive in determining the legal significance of the same or similar language on a separation agreement where the parties have engaged in sexual relations while separated for less than one year. We now hold that sexual relations between spouses separated for less than one year invalidates those obligations of the parties, pursuant to a separation agreement, that are contingent upon the requirement that the parties "live continuously separate and apart" for one year.
We find nothing equivocal or ambiguous about the language in either paragraph four or elsewhere in the separation agreement regarding the "lived continuously separate and apart" provision. The separation agreement is contained entirely in a single writing, and the record before this Court does not show evidence of the parties' intent outside of that writing. The effect of the separation provision on the parties' property settlement is clear; if the parties do not live continuously separate and apart for one year, then Mrs. Higgins is not obligated to transfer her interest in the marital residence to Mr. Higgins. The parties in the case sub judice admitted to having sexual relations during the one-year separation period. Such sexual relations, as a matter of law, caused the parties to no longer be living separate and apart, thereby invalidating Mrs. Higgins' obligation under the separation agreement to transfer her interest in the marital residence to Mr. Higgins.
Because the evidence at trial tended to show that no genuine issue of material fact existed as to whether the parties engaged in sexual relations during the one-year separation period as proscribed by their separation agreement, we hold that the trial court properly granted summary judgment in favor of Mrs. Higgins on her complaint for an equitable distribution as to the marital residence.
No error.
Judge EAGLES concurs.
Judge ORR dissents.