NORTH CAROLINA COURT OF APPEALS
21 October 2003
KELLY CRISP LONG,
Nos. 00 CVD 8870
00 CVD 11554
CHARLES N. LONG,
Appeal by plaintiff from judgment entered 28 September 2001 by
Judge Paul G. Gessner in Wake County District Court.
Heard in the
Court of Appeals 8 September 2003.
The Sandlin Law Firm, by Deborah Sandlin and John Patrick
McNeil, for plaintiff-appellant.
Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan
McGirt, for defendant-appellee.
EAGLES, Chief Judge.
This is an appeal from an order, issued after a bench trial,
Plaintiff argues on appeal: (1) that the
trial court erred as a matter of law in concluding that plaintiff
was cohabiting, (2) that the findings of fact were not supported by
competent evidence, (3) that the court erred in concluding that
defendant had not breached the “no interference” provision, (4)
that the court erred in concluding that defendant had not breached
the time and method of payment provisions and (5) that the court
erred in denying the plaintiff’s request for attorneys’ fees.
-2Plaintiff and defendant were married on 22 March 1992 and
separated on 8 July 1998.
The parties are the parents of two minor
Plaintiff and defendant were granted a divorce on 3
An “Interim Separation Agreement” was entered into by
the parties on 11 April 2000.
This agreement included detailed
obligated to pay alimony and child support for their two children
to the plaintiff by direct deposit from his bank account to hers on
the first day of each month, commencing 1 May 2000.
permitted termination of alimony payments upon the occurrence of
the first of a list of events.
One of these triggering events was
“cohabitation by Wife (plaintiff), as that term is defined in
N.C.G.S. § 50-16.9.”
The agreement also provided that neither
party was to molest or interfere with the other party in any
Defendant paid the alimony and child support in May and June
2000, but not in the manner prescribed in the agreement.
of using the direct deposit method, the defendant paid plaintiff by
personal check and payment was late.
Plaintiff received the May
payments around 4 May 2000 and the June payments around 12 June
During this time, plaintiff and defendant communicated with
each other extensively via telephone and email and less frequently
The parties’ communication was very strained and rude.
Also during this time, plaintiff began dating Mr. Parker Bowers.
At the end of June, defendant’s attorney notified plaintiff by
-3letter that defendant would no longer make the alimony payments
because of the plaintiff’s cohabitation with Mr. Bowers.
contract and seeking damages, specific performance, attorneys’
fees, a temporary restraining order and a preliminary injunction.
plaintiff’s cohabitation as a bar to alimony after June 2000, as
allowed by the separation agreement.
The trial court denied
Plaintiff contends that the trial court erred as a matter of
law in concluding that plaintiff had cohabited as defined in N.C.
Gen. Stat. § 50-16.9.
The parties’ separation agreement allowed
defendant to stop paying plaintiff alimony upon the occurrence of
any one of several events, including “cohabitation by Wife, as that
term is defined in N.C.G.S. § 50-16.9.”
N.C. Gen. Stat. § 50-
As used in this subsection, cohabitation
means the act of two adults dwelling together
continuously and habitually in a private
relationship is not solemnized by marriage, or
Cohabitation is evidenced by the voluntary
mutual assumption of those marital rights,
duties, and obligations which are usually
manifested by married people, and which
include, but are not necessarily dependent on,
sexual relations. Nothing in this section
shall be construed to make lawful conduct
which is made unlawful by other statutes.
N.C. Gen. Stat. § 50-16.9(b) (2001).
Plaintiff argues that the
trial court did not properly apply this statute, because it relied
-4on findings that merely evidenced a dating relationship between
plaintiff and Parker Bowers.
Plaintiff’s argument focuses on statutory language from the
first sentence, “dwelling together continuously and habitually.”
Plaintiff discounts that the statute’s second sentence provides
that cohabitation is evidenced by certain acts.
N.C. Gen. Stat. §
provision for a purpose and that no part is redundant.”
Simmons, 329 N.C. 779, 784, 407 S.E.2d 816, 818 (1991).
Stat. § 50-16.9(b) clearly says that cohabitation is evidenced by
“the voluntary mutual assumption of those marital rights, duties,
and obligations which are usually manifested by married people, and
N.C. Gen. Stat. § 50-16.9(b).
In order for the trial
court to conclude that cohabitation has occurred, it should make
findings that the type of acts included in the statute were
While we conclude that the trial court applied the correct
standard, its conclusions based on that standard must still be
supported by adequate findings of fact.
Here, the trial court’s
order lacks adequate findings of fact to support a conclusion of
testimony and evidence.
N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
requires that “[i]n all actions tried upon the facts without a jury
-5separately its conclusions of law thereon and direct the entry of
the appropriate judgment.”
N.C. Gen. Stat. § 1A-1, Rule 52(a)(1)
recapitulate the testimony or recite what witnesses have said do
Honeycutt, 71 N.C. App. 805, 323 S.E.2d 368 (1984).
trial court made several findings similar to the following:
Several witnesses for Defendant,
including a private detective hired by
Defendant, and Bowers’ former girlfriend who
lives in the same neighborhood, testified that
they had seen vehicles known to be operated by
Bowers, including a truck with the name of
Plaintiff’s driveway or in Plaintiff’s garage
overnight on numerous occasions.
The private detective’s report
indicated that a vehicle known to be driven by
Bowers was at Plaintiff’s house overnight on
May 17, 2000; May 18, 2000; May 24, 2000; May
25, 2000; May 26, 2000; May 30, 2000; May 31,
2000; June 2, 2000; June 3, 2000; June 6,
2000; June 9, 2000; June 13, 2000; and June
These findings are inadequate as they are “mere recitations of the
evidence and do not reflect the processes of logical reasoning.”
Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337,
As the findings of fact regarding cohabitation are
inadequate, the conclusions of law that the plaintiff cohabited and
that the defendant was relieved from paying alimony cannot stand.
Accordingly, we reverse and remand to the trial court for further
findings of fact consistent with this opinion.
Plaintiff also argues that the trial court erred in concluding
that defendant had not breached the separation agreement with
Separation agreements that have not been incorporated into a
divorce judgment are governed by general contract principles and
are enforceable and modifiable only under such principles.
v. Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001).
of breach of contract are (1) the existence of a valid contract and
(2) breach of the terms of the contract.
App. 19, 26, 530 S.E.2d 838, 843 (2000).
Poor v. Hill, 138 N.C.
In order for a breach of
contract to be actionable it must be a material breach, one that
substantially defeats the purpose of the agreement or goes to the
substantial failure to perform.
Fletcher v. Fletcher, 123 N.C.
App. 744, 752, 474 S.E.2d 802, 807-08 (1996), disc. rev. denied,
345 N.C. 640, 483 S.E.2d 706 (1997).
The trial court’s decision as
to whether a breach is material is a conclusion of law and is
therefore not binding on appeal, but is reviewable as any other
conclusion of law.
Id. at 752, 474 S.E.2d at 807.
The “no interference” provision of the separation agreement
1. The parties may and shall continue to
live apart for the rest of their lives. Each
shall be free from interference, direct or
indirect, by the other as fully as though
Each may for his or her own
separate benefit engage in any employment,
business or profession he or she may choose.
2. Neither party will molest or interfere
with the other party in any manner, at any
time, nor will either party compel or attempt
to compel the other party to cohabit or dwell
with him or her. Neither party will go on or
-7about the premises of the other without his or
The trial court found:
25. Defendant admitted in his answer as
well as in his trial testimony to making the
following statements about or to Plaintiff:
“Your day is on the way,”; “Are you scared
yet?”; “It’s finally time for you to pay for
what you’ve done,” and, “You are getting ready
to see difficult. You are clueless. Get your
head out of his (Bowers’) rear-end and look
However, Defendant denied in his
answer as well as in his trial testimony that
said remarks were in any way verbally abusive
or made as a threat to Plaintiff and this
Court finds that the evidence at trial tended
to show that there was obnoxious conduct
between both parties, and that even though
testimony, did not always conduct himself in
a manner that was best for the parties’
children, neither did Plaintiff.
The trial court apparently did find that the conduct on the part of
the defendant would be a violation of the “no interference clause”
but did not find breach due to plaintiff’s conduct.
However, breach by one party does not automatically excuse the
other party’s performance under the separation agreement. In Smith
v. Smith, it was held,
(1) that it is not every violation of the
terms of a separation agreement by one spouse
performance; (2) that in order that a breach
by one spouse of his or her covenants may
relieve the other from liability from the
latter's covenants, the respective covenants
independent; and (3) that the breach must be
of a substantial nature, must not be caused by
the fault of the complaining party, and must
have been committed in bad faith.
-8Smith v. Smith, 225 N.C. 189, 197-98, 34 S.E.2d 148, 153 (1945).
In Smith, the Court found that the husband’s duty to pay alimony
was independent of the wife’s duty to not interfere with her former
interference” provision of the separation agreement is independent
from any other provision of the agreement.
There is nothing to
indicate that a failure by the plaintiff to abide by any provision
authorizes the defendant to breach the “no interference” provision.
defendant’s admitted conduct.
We conclude that the defendant’s
conduct did rise to the level of “interference, molestation and
Accordingly, we reverse the trial court’s conclusion
that defendant had not substantially interfered with or harassed
Plaintiff also argues that the trial court erred in failing to
provisions of the separation agreement.
Breach of contract is a
conclusion of law reviewable by this Court.
App. at 752, 474 S.E.2d at 807.
Fletcher, 123 N.C.
There was a breach of the
agreement’s terms here. It is undisputed that defendant failed to
pay the plaintiff by direct deposit or by the first of the month in
either May or June.
However, to be actionable, the breach must
characterized as a substantial failure to perform. Id. at 752, 474
S.E.2d at 807-08.
Here, the plaintiff did receive the required
While the deviation in method of payment might
-9have been inconvenient, the deviation did not substantially defeat
the purpose of the agreement nor was it a substantial failure to
assignment of error fails.
Plaintiff further argues that the trial court erred in failing
to award her attorneys’ fees.
The separation agreement allowed:
In the event either party shall institute
an action to enforce the provisions of this
agreement, the party prevailing in said
action, whether by adjudication or settlement,
shall be entitled to recover their suit costs,
including attorney’s fees at a reasonable
hourly rate, from the other party.
The separation agreement only allows the award of attorneys’ fees
to the prevailing party in an action.
The trial court did not have
the authority to modify this contract.
Since plaintiff’s claims
were denied by the trial court, the trial court could not award
attorneys’ fees to the plaintiff.
However, this issue may be
reconsidered by the trial court in light of our conclusion that
defendant breached the “no interference” clause of the separation
Affirmed in part, remanded in part.
Judges McCULLOUGH and STEELMAN concur.