{ "id": 11920143, "name": "MARY LEE COOMBS, Plaintiff v. LEE ROY COOMBS, Defendant", "name_abbreviation": "Coombs v. Coombs", "decision_date": "1996-03-05", "docket_number": "No. 945DC628", "first_page": "746", "last_page": "752", "citations": [ { "type": "official", "cite": "121 N.C. App. 746" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "10 ALR2d 466", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "9 ALR2d 1026", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "303 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "425" }, { "page": "426" }, { "page": "428" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524597 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "676-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0676-01" ] }, { "cite": "230 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548649 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0083-01" ] }, { "cite": "75 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "159", "parenthetical": "where statute sets forth the instances of its coverage, other coverage necessarily excluded" } ], "opinion_index": 0 }, { "cite": "237 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611496 ], "year": 1953, "pin_cites": [ { "page": "376", "parenthetical": "where statute sets forth the instances of its coverage, other coverage necessarily excluded" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0373-01" ] }, { "cite": "457 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "310", "parenthetical": "General Assembly presumed to know content of courts' decisions" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920628 ], "year": 1995, "pin_cites": [ { "page": "673", "parenthetical": "General Assembly presumed to know content of courts' decisions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0666-01" ] }, { "cite": "374 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "452" }, { "page": "452-453" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526792 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0274-01" ] }, { "cite": "117 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1961, "pin_cites": [ { "page": "793" }, { "page": "793" }, { "page": "793" } ], "opinion_index": 0 }, { "cite": "253 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627204 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "790" }, { "page": "790" }, { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0787-01" ] } ], "analysis": { "cardinality": 672, "char_count": 12187, "ocr_confidence": 0.761, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24427910661972957 }, "sha256": "38601cce042a4734d5e1dc47723ac685283903a3d5097cb2271e77ac6004a8ee", "simhash": "1:ac4cd40e26afa95a", "word_count": 1978 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN, Mark D. concur." ], "parties": [ "MARY LEE COOMBS, Plaintiff v. LEE ROY COOMBS, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff appeals the trial court\u2019s entry of summary judgment in favor of defendant. She contends the court erred by denying her claim for permanent alimony in consequence of her admitted sexual intercourse with a third party subsequent to an order of divorce from bed and board. We affirm the trial court.\nRelevant background information is as follows: Mary Lee Coombs and Lee Roy Coombs were married 7 April 1964. On 12 January 1993, plaintiff filed the instant action, seeking divorce from bed and board as well as temporary and permanent alimony. She alleged defendant \u201coffered such indignities so as to make [her] condition intolerable and life burdensome,\u201d and specifically claimed he had committed mental and physical abuse and had engaged in numerous adulterous affairs. Defendant answered 10 February 1993, denying the allegations essential to plaintiffs claim for alimony, and affirmatively defending on grounds of plaintiffs adultery.\nFollowing a hearing, the trial court entered an order 14 April 1993. The court found defendant had committed acts of adultery and physical abuse against plaintiff and their minor children, granted plaintiff divorce from bed and board, and directed that defendant pay $1,400.00 per month in alimony pendente lite.\nOn 22 March 1994, defendant moved for summary judgment on the issue of permanent alimony, stating:\nat no time have the plaintiff and defendant entered into a Separation Agreement or Consent Judgment in which they released each other from their respective rights, duties and responsibilities arising out of their marital relationship.\nIn a supporting affidavit, defendant stated he had witnessed plaintiffs vehicle at a third party\u2019s home late at night on a number of occasions \u2022 during February and March 1993, and that plaintiff had not spent the night in the marital home on these evenings. Defendant also indicated a private detective agency had confirmed his observations. Thus, defendant asserted,, plaintiff was barred from receiving permanent alimony on the basis of her own adulterous activity.\nPlaintiffs response admitted she had engaged in sexual relations with a third party subsequent to entry of the divorce from bed and board, but denied any adulterous conduct prior to that date.\nOn 31 March 1994, the trial court entered an order granting defendant\u2019s motion for summary judgment stating:\n[Plaintiffs admitted adultery after she was granted a divorce from bed and board on 14 April 1993, and in the absence of an absolute divorce and in the absence of a Separation Agreement or Consent Judgment, constitutes a bar to the plaintiffs alimony claim as a matter of law ....\nPlaintiff gave notice of appeal to this Court 13 April 1994.\nThe sole issue presented on appeal is whether sexual intercourse by plaintiff with a third party subsequent to a decree granting her divorce from bed and' board operated to bar plaintiffs claim for permanent alimony.\nWe note initially that the General Assembly has recently enacted substantial modifications of our statutes affecting alimony litigation, and that the focus currently is placed upon \u201cmarital misconduct\u201d occurring \u201cduring the marriage and prior to or on the date of separation.\u201d N.C.G.S. \u00a7 50-16.1A(3) (1995) (emphasis added). However, these amendments became effective 1 October 1995, are applicable only \u201cto civil actions filed on or after that date,\u201d 1995 N.C. Sess. Laws ch. 319, \u00a7 12, and thus have no bearing upon the case sub judice.\nA divorce mensa et thoro (\u201cfrom bed and board\u201d) is a limited divorce and consists of \u201cnothing more than a judicial separation\u201d which \u201csuspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond.\u201d Schlagel v. Schlagel, 253 N.C. 787, 790, 117 S.E.2d 790, 793 (1961). Thus, sexual intercourse with a third party by either partner constitutes adultery even after a decree of divorce from bed and board has been entered. 1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law, \u00a76.21(F)(3), at 611 (5th ed. 1993).\nA party may seek permanent alimony upon filing for a divorce from bed and board. N.C.G.S. \u00a7 50-16.8(b)(l) (1987) (amended by 1995 N.C. Sess. Laws ch. 319). However,\nalimony . . . shall not be payable when adultery is pleaded in bar of demand for alimony..., made in an action or cross action, and the issue of adultery is found against the spouse seeking alimony\nN.C.G.S. \u00a7 50-16.6(a) (1987) (repealed by 1995 N.C. Sess. Laws ch. 319, \u00a7 4).\nWhile plaintiff concedes \u201cconduct after the decree of divorce from bed and board can continue to amount to marital misconduct,\u201d Reynolds, supra, \u00a7 6.21(F)(3), at 611, she nonetheless urges that we\nreconsider this common-law principle on the grounds that the post-separation conduct of one who has received a divorce from bed and board should receive no different treatment than one who is a party to a valid separation agreement under which the parties have agreed to live separate and apart and without interference from the other party.\nHowever, our decision in Adams v. Adams, 92 N.C. App. 274, 374 S.E.2d 450 (1988), negates plaintiff\u2019s position. In Adams, defendant husband who had committed adultery following the parties\u2019 separation insisted such conduct \u201c \u2018neither caused the marital break-up nor tended to diminish any remote possibility of reconciliation.\u2019 \u201d Id. at 277, 374 S.E.2d at 452. He argued on appeal that the trial court had consequently erred in awarding alimony to plaintiff.\nIn sustaining the trial court, we observed that\n[u]ntil the State grants [the parties] an absolute divorce, a couple, though separated from each other, continues to be wife and husband. It is for this reason that N.C. Gen. Stat. Sec. 50-16.2 (1987), which sets down the fault grounds for alimony, does not distinguish between pre-separation and post-separation adultery. We do not view the failure of the General Assembly to differentiate between these time periods to be an oversight. Rather, defining adultery so as to include any act of voluntary sexual intercourse between a spouse and a third party \u2014the former\u2019s separation from the other spouse notwithstanding \u2014 is consist\u00e9nt with [this State\u2019s] policy favoring reconciliation.\nId. at 278, 374 S.E.2d at 452-453. Accordingly, we held that voluntary sexual intercourse by a spouse with a third party during the parties\u2019 period of separation constitutes adultery as contemplated by N.C.G.S. \u00a7 50-16.2(1) (1987) (repealed by 1995 N.C. Sess. Laws ch. 319, \u00a7 1) and is thus grounds for alimony. Id. at 279, 376 S.E.2d at 453.\nIn the foregoing context, we note that our General Assembly in enacting Chapter 31A of the General Statutes engendered certain changes of the common law regarding the effect of divorce from bed and board on estate rights of the spouse against whom the decree was entered. See Reynolds, supra, \u00a7 6.21(C), at 603-604; N.C.G.S. \u00a7 31A-1 (1984). Notwithstanding the decision in Adams, however, no legislation until recently touched upon the common law rule regarding post-decree marital misconduct. See N.C.G.S. \u00a7 50-16.1A(3) (1995). By its failure to negate Adams and extend modification of the common law rule beyond certain estate rights, the General Assembly has spoken. See Blackmon v. N.C. Dept. of Corrections, 118 N.C. App. 666, 673, 457 S.E.2d 306, 310 (1995) (General Assembly presumed to know content of courts\u2019 decisions). See also In re Taxi Co., 237 N.C. 373, 376, 75 S.E.2d 156, 159 (1953) (where statute sets forth the instances of its coverage, other coverage necessarily excluded).\nAdams therefore controls our decision herein. There exists no practical distinction between the circumstance of the separated parties in Adams and that of plaintiff and defendant who obtained \u201cnothing more than a judicial separation,\u201d Schlagel, 253 N.C. at 790, 117 S.E.2d at 793, which affected \u201clittle change on the incidents of marriage other than rights of conjugal cohabitation,\u201d Reynolds, supra, \u00a7 6.21(D), at 604, and the estate rights noted above. In either instance, moreover, the parties must live separate and apart for one year before a court will grant an absolute divorce. See N.C.G.S. \u00a7 50-6 (1995). Voluntary sexual relations with a person not one\u2019s spouse during separation pursuant to a decree of divorce from bed and board thus constitute adultery and a defense to the payment of permanent alimony under N.C.G.S. \u00a7 50-16.6(a) (1987) (repealed by 1995 N.C. Sess. Laws ch. 319, \u00a7 4).\nPlaintiff\u2019s reliance on Riddle v. Riddle, 32 N.C. App. 83, 230 S.E.2d 809 (1977) and Sethness v. Sethness, 62 N.C. App. 676, 303 S.E.2d 424 (1983) is unfounded. In Riddle, the parties entered into a formal separation agreement whereby husband agreed, inter alia, to pay wife $600.00 per month until she \u201c \u2018either remarries or dies, whichever occurs first,\u2019 \u201d and that each might \u201c \u2018go his or her way, and each live his or her personal life unmolested, unhampered, and unrestricted by the other ....\u2019\u201d Riddle, 32 N.C. App. at 88, 230 S.E.2d at 812. Wife thereafter entered into a relationship with another man, and husband asserted her post-separation conduct as a defense to enforcement of the alimony provisions.\nUsing basic contract principles, this Court held the agreement \u201cmust be enforced according to its own terms.\u201d Id. As neither of the contingencies which relieved husband of his obligations had occurred, he remained obligated under the agreement to pay alimony.\nIn Sethness, the parties entered into a written agreement which specified varying amounts of alimony over a number of years to be paid by husband to wife. Sethness, 62 N.C. App. at 676-77, 303 S.E.2d at 425. Husband later filed an action alleging wife had \u201c \u2018lewdly and lasciviously associated, bedded and cohabited with a man,\u2019 \u201d and seeking to have the agreement declared null and void as against public policy with regard to the alimony provisions. Id. at 678, 303 S.E.2d at 426.\nOn appeal to this Court, we upheld the agreement, noting that while \u201c[w]e do not condone illicit cohabitation or illicit intercourse,\u201d which conduct \u201cviolate[s] the laws of this state,\u201d such acts do not necessarily void the agreement entered into between the parties. Id. at 681, 303 S.E.2d at 428.\nBecause a separation agreement does not specifically prohibit \u201cillicit intercourse\u201d and cohabitation and may, by implication, even condone such acts, it does not therefore follow that the agreement promotes them. Whether the silence of a separation agreement on such issues renders it void as against public policy is a matter for legislative, not judicial, determination.\nId.\nIn contrast to Riddle and Sethness, the case sub judice does not involve a formal separation agreement wherein the parties have entered into a contract touching upon nearly all the rights and incidents of marriage as well as providing for the payment of alimony. As such, the contract principles relied upon by this Court in those cases are inapplicable to the instant circumstance in which the parties separated pursuant to a decree which constitutes \u201cnothing more than a judicial separation,\u201d Schlagel, 253 N.C. at 790, 117 S.E.2d at 793, and which \u201cworks little change on the incidents of marriage,\u201d Reynolds, supra, \u00a7 6.21(D), at 604.\nAffirmed.\nJudges JOHNSON and MARTIN, Mark D. concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Shipman & Lea, by James W. Lea, III, and J. Albert Glybum, for plaintiff-appellant.", "Mason & Boney, by William Norton Mason, for defendant-appellee." ], "corrections": "", "head_matter": "MARY LEE COOMBS, Plaintiff v. LEE ROY COOMBS, Defendant\nNo. 945DC628\n(Filed 5 March 1996)\nDivorce and Separation \u00a7 203 (NCI4th)\u2014 sex after divorce from bed and board \u2014 bar to permanent alimony\nSexual intercourse by plaintiff with a third party subsequent to a decree granting her a divorce from bed and board operated to bar plaintiff\u2019s claim for permanent alimony.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 567, 568, 641, 643-647.\nMisconduct of wife to whom divorce is decreed as affecting allowance of alimony, or amount allowed. 9 ALR2d 1026.\nDefenses available to husband in civil suit by wife for support. 10 ALR2d 466.\nAppeal by plaintiff from order entered 31 March 1994 by Judge J. H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 1 March 1995.\nShipman & Lea, by James W. Lea, III, and J. Albert Glybum, for plaintiff-appellant.\nMason & Boney, by William Norton Mason, for defendant-appellee." }, "file_name": "0746-01", "first_page_order": 780, "last_page_order": 786 }