Tuttle v. Tuttle

244 S.E.2d 447 (1978)

Robert Louis TUTTLE v. Margaret Godfrey TUTTLE.

No. 7721DC601.

Court of Appeals of North Carolina.

June 6, 1978.

Graves & Nifong by Edward M. Ferguson, Jr., Winston-Salem, for plaintiff-appellant.

*448 VAUGHN, Judge.

There is no evidence in this record that would support a finding that the parties to the lawsuit resumed their marital relationship. The evidence shows that almost a year after defendant left the family home, she returned to visit her children and spent one night with them. In no way does this evidence tend to show that the parties held themselves out as living together. Moreover, such behavior could not reasonably induce others to regard the parties as living together. Where there is no cohabitation nor any intent to resume the marital relationship, interruption of the statutory period should not be found (absent some other extenuating circumstances) from the mere fact of social contact between the parties. Indeed, in this case, plaintiff's attempts to help maintain contact between his children and their mother should be commended.

The situation should be distinguished from those where the physical separation of the parties was not the result of an intention to sever the marital relationship. E. g. Mason v. Mason, 226 N.C. 740, 40 S.E.2d 204 (1946); Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945). In those cases it could reasonably be inferred that visits between the parties were associations of a character that could reasonably induce others to regard them as living together. In the cases cited, the husband was serving in the armed forces during World War II. Visits between the parties when the husband was on leave and other circumstances disclosed in the record of the cases were not consistent with separation under the statute. In this case, however, the undisputed testimony of plaintiff was to the effect that the parties have lived separate since 3 January 1976, and that defendant's visit was openly for the purpose of visiting her children.

The term "separate and apart" has been interpreted many times in light of the interest to be protected.

"Separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together. For the purpose of obtaining a divorce under . . . G.S. § 50-6, separation may not be predicated upon evidence which shows that during the period the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase." Young v. Young, 225 N.C. at 344, 34 S.E.2d at 157.

See also Dudley v. Dudley, 225 N.C. 83, 33 S.E.2d 489 (1945); Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284 (1976).

"`Separation means cessation of cohabitation, and cohabitation means living together as man and wife, though not necessarily implying sexual relations.'" In re Estate of Adamee, 291 N.C. 386, 392, 230 S.E.2d 541, 546 (1976) (quoting Young v. Young, supra).

The court's finding appears to have been based on an erroneous concept of what would legally constitute a resumption of the marital relationship. Plaintiff is, therefore, entitled to a new trial.

New trial.

PARKER and WEBB, JJ., concur.