Newton v. Williams

214 S.E.2d 285 (1975)

25 N.C. App. 527

Justine Williams NEWTON v. Sanford Ellis WILLIAMS.

No. 7410DC1097.

Court of Appeals of North Carolina.

May 7, 1975.

*287 Jordan, Morris & Hoke by Joseph E. Wall, Raleigh, for plaintiff-appellee.

Brady, Gardner & Wynne by T. Alfred Gardner, Raleigh, for defendant-appellant.

BRITT, Judge.

G.S. § 1A-1, Rule 56, provides for the rendition of summary judgment ". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . . ." We disagree with the trial court's conclusion in the instant case that no genuine issue as to any material fact was shown and that plaintiff is entitled to judgment as a matter of law.

As stated in plaintiff's brief, we are not concerned in this case with the question of what conduct invalidates a separation and bars a divorce on ground of one-year separation; our inquiry is with respect to conduct that will invalidate the provisions of a separation and property settlement agreement. While the court was confronted with an executed contract in Jones v. Lewis, 243 N.C. 259, 90 S.E.2d 547 (1955), we think the following statement from the opinion by Justice (later Chief Justice) Denny, page 261, 90 S.E.2d page 549, is appropriate here:

It is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose insofar as it remains executory. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; S. v. Gossett, 203 N.C. 641, 166 S.E. 754; Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768; Campbell v. Campbell, 234 N.C. 188, 66 S.E.2d 672.

Without question, the provisions of the agreement which plaintiff seeks to enforce are executory. The question then arises as to whether the parties became reconciled and renewed their marital relations. The effect of the judgment appealed from is to say that the pleadings, affidavits and stipulations established as a matter of law that the parties did not become reconciled and renew their marital relations.

Under the pleadings, affidavits and stipulations offered, we think the question as to whether the parties became reconciled and renewed their marital relations presented a question of fact to be determined at a trial of the action. In 1 Lee, N.C. Family Law (3d ed. 1963), § 35, at 152-53, while the author discusses reconciliation and a resumption of cohabitation in the context of terminating a divorce from bed and board, we think our holding finds support in the following statements:

. . . There may be a reconciliation and resumption of cohabitation with an intention that it shall be a normal and permanent relationship, even though, despite the intention, the relationship lasts only a short time. . . . Mere proof that isolated acts of sexual intercourse have taken place between the parties is not conclusive evidence of a reconciliation and resumption of cohabitation. There must ordinarily appear that the parties have established a home and that they are living in it in the normal relationship of husband and wife.

Although the parties stipulated to the acts in question, they disagree with respect to their intention. Plaintiff indicates in her affidavit and by stipulation that they were done for her convenience and that she never had any intention of permanently resuming the marital relationship. On the other *288 hand, defendant indicates in his affidavit that he was attempting to resolve their marital difficulties and spent many days and nights with plaintiff believing there would be a permanent reconciliation. The issue of the parties' mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation. Since the evidence is clearly in conflict as to this intent, summary judgment was premature and therefore improper. See generally Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E.2d 912 (1956); Hudson v. Fatolitis, 289 So. 2d 41 (Fla.App.1974); 42 C.J.S. Husband and Wife § 601 (1944); 24 Am.Jur.2d, Divorce and Separation, § 916 (1966); 1 R. Lee, N.C. Family Law, §§ 35, 200 (3d ed. 1963); Annot., 35 A.L.R.2d 707 (1954).

For the reasons stated, we hold that the trial court erred in allowing plaintiff's motion for summary judgment.

Reversed and remanded.

MORRIS and ARNOLD, JJ., concur.