An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA09-107
NORTH CAROLINA COURT OF APPEALS
Filed:
6 October 2009
WILFRED SLIGHT,
Plaintiff,
v.
Nash County
No. 08 CVD 24
BETTY SLIGHT,
Defendant.
Appeal by defendant from order entered 5 September 2008 by
Judge John Covolo in Nash County District Court.
Heard in the
Court of Appeals 11 June 2009.
Thomas R. Sallenger for plaintiff.
W. Michael Spivey for defendant.
ELMORE, Judge.
Wilfred Slight (Wilfred or plaintiff) and Betty Slight (Betty
or defendant) were married on 3 November 2003.
On 4 January 2008,
Wilfred filed for divorce from bed and board, claiming among other
things that Betty had been unfaithful.
After a trial, the court
granted a divorce from bed and board on 5 September 2008.
In its order, the court found, inter alia, that: (1) evidence
of infidelity on Betty’s part had been presented through Betty’s
own testimony; (2) Betty “failed to establish any ground necessary
for alimony or post separation support”; and (3) Betty was not a
-2dependent spouse.
The court ordered, inter alia, that Wilfred pay
Betty $100.00 per month in post-separation support for a maximum of
twelve months, and that Betty vacate Wilfred’s house within fifteen
days of the hearing.
Betty appealed to this Court.
For the
reasons below, we affirm.
I
Defendant first argues that the trial court failed to make
findings of fact and conclusions of law that support certain parts
of the order.
We disagree.
Our standard of review is “whether there is competent evidence
to support the trial court’s findings of fact and whether the
findings support the conclusions of law and ensuing judgment.
Findings of fact are binding on appeal if there is competent
evidence
to
contrary.”
support
them,
even
if
there
is
evidence
to
the
Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d
160, 163 (2001) (citation omitted).
Defendant first argues that the trial court’s finding of fact
that she committed adultery was not based on competent evidence in
the record, and that the trial court’s conclusions of law that she
was not a dependent spouse and calculation of post-separation
support were not supported by appropriate findings of fact.
We
disagree.
At trial, plaintiff stated that he had come across salacious
emails sent between defendant and her ex-husband that indicated the
two were having an affair, meeting when plaintiff was out of town.
These emails were introduced as evidence and included specific
-3mentions of dates and locations where the two planned to meet, as
well as sexually explicit messages indicating that she and the
recipient, her ex-husband, were presently engaged in an affair.
Further, defendant testified at trial that she had created a dating
profile on the website “Date a Millionaire.”
As our Supreme Court
has noted, with regard to proving adultery has occurred, “it is
usually proved by circumstances – rarely by positive and direct
evidence of the adulterous acts.
It is not necessary that the
[persons having an affair] should have been seen bedding and
cohabiting together.”
S.E.
512,
513
(1890).
State v. Rineheart, 106 N.C. 787, 790, 11
The
emails
and
defendant’s
testimony
constitute competent evidence on which the court based its finding
of fact that infidelity had been committed by defendant.
We next turn to defendant’s argument that the trial court did
not make proper findings of fact to support its conclusion that she
was not a dependent spouse, and therefore did not properly consider
the issue of post-separation support or alimony.
“The decision to award alimony is a matter within the trial
judge’s sound discretion and is not reviewable on appeal absent a
manifest abuse of discretion.”
Alvarez v. Alvarez, 134 N.C. App.
321, 323, 517 S.E.2d 420, 422 (1999).
Even in cases where one
spouse is dependent on the other, “[i]f the court finds that the
dependent spouse participated in an act of illicit sexual behavior
.
.
.
during
the
marriage
and
prior
to
or
separation, the court shall not award alimony.”
50-16.3A (2007).
on
the
date
of
N.C. Gen. Stat. §
“[I]llicit sexual behavior” is explained as,
-4among other things, sexual acts or sexual intercourse.
Id.
As
such, even had defendant been adjudged as a dependent spouse, the
trial court’s finding of fact concerning defendant’s infidelity –
a finding which was supported by evidence, as discussed supra – was
a bar to her receiving any alimony.
Thus, whether or not defendant
was a dependent spouse who would therefore be eligible for alimony
is moot.
As such, we overrule defendant’s argument on this point.
We
note that neither party contests the $100.00 per month postseparation support awarded by the trial court, so we do not address
that portion of the order.
II
Defendant next argues that the trial court erred by concluding
that
it
had
subject
matter
jurisdiction
distribution claim asserted by plaintiff.
over
the
equitable
We disagree.
Defendant argues that equitable distribution of assets cannot
occur until a husband and wife live separately, citing N.C. Gen.
Stat. § 50-21(a), which states: “At any time after a husband and
wife begin to live separate and apart from each other, a claim for
equitable distribution may be filed and adjudicated[.]”
N.C. Gen.
Stat. § 50-21(a) (2007) (emphasis added). However, the trial court
here never entertained any discussion on equitable distribution and
made no findings or orders concerning equitable distribution.
Indeed, plaintiff’s counsel stated at trial “this is not an ED
hearing[.]” The trial concerned only a divorce from bed and board.
-5As such, the trial court’s jurisdiction over equitable jurisdiction
is irrelevant, and defendant’s argument is overruled.
III
Finally, defendant argues that the trial court abused its
discretion
by
ordering
her
to
vacate
plaintiff’s
home.
We
disagree.
Defendant’s
argument
on
this
point
is
identical
to
her
argument in Section II, supra, namely that the trial court did not
have “subject matter jurisdiction over the equitable distribution
claim.”
As stated above, the trial court’s order did not concern
any issues of equitable distribution, and a divorce from bed and
board is merely a judicial decision ordering a spouse out of the
house, not a part of the equitable distribution process.
Triplett
v. Triplett, 38 N.C. App. 364, 366, 248 S.E.2d 69, 70 (1978).
As
such, the trial court did not abuse its discretion in ordering
defendant to vacate the house.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
