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  "name": "PATRICIA H. FLETCHER, Plaintiff v. RICHARD N. FLETCHER, Defendant",
  "name_abbreviation": "Fletcher v. Fletcher",
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      "PATRICIA H. FLETCHER, Plaintiff v. RICHARD N. FLETCHER, Defendant"
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    "opinions": [
      {
        "text": "JOHN, Judge.\nDefendant contends the trial court erred, inter alia, by ordering rescission of the parties\u2019 separation agreement. We agree.\nUndisputed pertinent facts and procedural information are as follows: Plaintiff and defendant were married 10 August 1974. Plaintiff left the marital home 10 August 1993 and soon thereafter moved into a mobile home which she maintained as her separate residence. On 13 October 1993, the parties entered into a \u201cSeparation Agreement\u201d (the agreement), wherein each expressed the intention to live separate and apart from the other on a permanent basis. The agreement settled child custody as well as property division issues, the parties respectively agreeing not to \u201cseek a different distribution of any property in any action.\u201d\nOn the evening of 5 December 1993, plaintiff returned to the marital home, taking with her one \u201cwork outfit\u201d and toiletry items such as make-up and a toothbrush. For the following five days, from 6 December 1993 until 11 December 1993, the parties spent approximately four hours together each evening eating dinner and spending time with their sons. Plaintiff returned to her trailer on one occasion for more work clothes. During the six day period, plaintiff and defendant engaged in sexual intercourse three to four times. On 11 December 1993, defendant asked plaintiff to leave, stating he wished to be with his girlfriend. Plaintiff resumed full-time residence in her mobile home on that date.\nPlaintiff filed the instant action on or about 31 August 1994, alleging defendant had breached the agreement and that the events in December constituted a reconciliation. She requested that the court rescind the agreement and effect an equitable distribution of the marital property. Defendant filed answer denying plaintiffs allegations and seeking specific performance of the agreement and counsel fees.\nFollowing a hearing, the trial court denied defendant\u2019s motion for directed verdict and granted plaintiff\u2019s prayer for relief, determining in pertinent part as follows:\n10. That the Defendant, Richard Fletcher, breached said agreement in the following respects.\na. [I]n that on or about August 3, 1994, the son, Brian Matthew Fletcher, had [dental] surgery and Plaintiff was not contacted by [defendant] in regards to his having surgery ....\nb. [I]n that he failed to cancel the joint credit card accounts with VISA, J.C. Penney\u2019s and Sprint....\nc. [B]y failing to pay [plaintiff] the full amount of. . . her interest in the pension benefits of [defendant]. . . .\n12. That the parties did reconcile as a matter of law in that they resumed living together in the home which they occupied before the separation and thus held themselves out as [husband] and wife and resumed marital cohabitation in that home and thus rescinded the separation agreement entered into by and between the parties.\nThe judge thereafter ordered the following:\n2. That said separation agreement and the executory provisions thereof, including the waiver by the Plaintiff... of her right to an equitable distribution are declared null and void.\n3. That... based on the reconciliation of the parties, their words and conduct substantially defeating the purpose of the separation agreement, the executed provisions of the agreement are declared null and void.\n4. That further, the Court decrees that the breaches of the separation agreement by the Defendant . . . were material breaches. That the parties, in fact, reconciled . . . and that the period of separation on which to base an absolute divorce on one year\u2019s separation . . . shall commence upon the re-separation of the parties on or about December 11 or 12, 1993.\n5. That. . . the Court. . . shall proceed to determine what is the marital property of the parties and provide for an equitable distribution of the marital property ....\nDefendant appeals, arguing the trial court erred by rescinding the agreement based upon the court\u2019s determination that: (1) the parties reconciled subsequent to execution of the agreement; and (2) defendant materially breached the agreement. We conclude rescission was error under the circumstances sub judice.\nI.\nN.C. Gen. Stat. \u00a7 52-10.2 (1991), enacted 1 October 1987, sets out the test by which conduct between separated spouses is measured in order to determine if reconciliation has been effected:\n\u201cResumption of marital relations\u201d shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.\nResumption of marital relations voids the executory portions of a separation agreement, In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976), and\nif [such] conduct of the [parties] substantially defeat[s] the purpose of the . . . agreement.... even the executed provisions of that agreement are void.\nStegall v. Stegall, 100 N.C. App. 398, 411-12, 397 S.E.2d 306, 314 (1990), disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991).\nThe much criticized holding in Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978), that casual or isolated instances of sexual intercourse between separated spouses constitute reconciliation, see Sally Burnett Sharp, Divorce and the Third Party: Spousal Support, Private Agreements, and the State, 59 N.C. L. Rev. 819, 841-42 (1981) (result of Murphy \u201cis that parties (or at least one party) will be penalized for trying to reconcile if he or she is unsuccessful in that attempt\u201d), and Patricia L. Holland, Note, Isolated Acts of Sexual Intercourse Void Separation Agreements \u2014 Murphy v. Murphy, 16 Wake Forest L. Rev. 137, 148 (1980) (while isolated acts test serves \u201cgoal of judicial efficiency, it undermines the goal of judicial integrity\u201d), was overruled by enactment of G.S. \u00a7 52-10.2. The \u201ctotality of the circumstances\u201d standard of G.S. \u00a7 52-10.2 also determines when reconciliation has occurred so as to toll the one-year period of separation required for divorce. See N.C. Gen. Stat. \u00a7 50-6 (1995).\nThe method by which a trial court may evaluate whether separated spouses have reconciled is dictated by\ntwo lines of cases regarding the resumption of marital relations: those which present the question of whether the parties hold themselves out as [husband] and wife as a matter of law, and those involving conflicting evidence such that mutual intent becomes an essential element. See Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, disc. review denied, 300 N.C. 556, 270 S.E.2d 107 (1980). . . . The first method, represented by In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), requires the presence of substantial objective indicia of cohabitation as [husband] and wife. When such evidence exists, the trial court may find that the parties have reconciled as a matter of law. The second method, on the other hand, exemplified by the Hand decision, involves conflicting evidence; the subjective mutual intent of the parties, therefore, becomes an essential element.\nSchultz v. Schultz, 107 N.C. App. 366, 369, 420 S.E.2d 186, 188 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993).\nIn the case sub judice, the facts surrounding the determinative events of the six-day period in December 1993 are essentially undisputed, save a minor conflict regarding which of the parties first transported plaintiff to the former marital home. The trial court therefore correctly applied the approach of the first line of cases in considering whether the parties had reconciled \u201cas a matter of law.\u201d Consequently, our standard of review is whether, as a matter of law, \u201csubstantial objective indicia,\u201d Schultz, 107 N.C. App. at 369, 420 S.E.2d at 118, exist from the \u201ctotality of the circumstances\u201d to support the conclusion that the parties \u201cvoluntarily renew[ed]... the husband and wife relationship.\u201d G.S. \u00a7 52-10.2.\nIn Schultz, this Court held the undisputed evidence presented to the trial court was sufficiently substantial to determine as a matter of law that the parties had resumed marital relations under G.S. \u00a7 52-10.2. Schultz, 107 N.C. App. at 373, 420 S.E.2d at 190. The record revealed that husband had moved back into the marital residence, bringing his belongings, his pets, and his automobile, and that he lived in the marital home continuously over a four month period during which he paid utility and other joint bills, and mowed the lawn. Further, wife did husband\u2019s laundry, and the couple went shopping together as well as worked in the yard and dined at restaurants. Moreover, the parties filed a joint tax return and \u201cengaged in sexual relations about once a week for at least two or three months after [husband\u2019s] return.\u201d Id.\nIn concluding as a matter of law that the parties in Schultz had resumed the husband and wife relationship, this Court found analogous the undisputed facts in Adamee, which our Supreme Court deemed sufficient as a matter of law to establish that the parties had \u201cheld themselves out as husband and wife living together.\u201d Adamee, 291 N.C. at 392-93, 230 S.E.2d at 546. In Adamee, wife returned to the marital home approximately one month following execution by the parties of a separation agreement and consent judgment, and remained at the home with husband until his death some eight months later. Id. at 393, 230 S.E.2d at 546. Further evidence showed the couple had\noccupied one bedroom and one bed; that [husband] paid to [wife\u2019s] attorney the balance she owed him for representing her in the suit against [husband]; that the respective attorneys for [husband] and [wife], who had been appointed commissioners in the consent judgment to sell the parties\u2019 jointly owned property at public auction and divide the proceeds equally between them were instructed that the parties no longer desired a sale, and no sale was made; that [husband] told friends he and his wife had worked out their problems and were planning an early retirement in order to open an antique shop in Alabama; that the month before his death [husband] had instructed a friend in Alabama to proceed with attempts to purchase a certain piece of property for himself and wife jointly; that they had had problems but they had been settled.\nId. at 390, 230 S.E.2d at 544-45.\nAlthough the foregoing provides guidance for review of the evidence in the case sub judice, to the extent Adamee contradicts present law regarding reconciliation as expressed in G.S. \u00a7 52-10.2, the latter controls. For example, the statute sets out a \u201ctotality of circumstances\u201d standard. Our courts have not yet determined the explicit meaning of \u201ctotality of the circumstances\u201d for purposes of G.S. \u00a7\u00a7 52-10.2 and 50-6. However, the \u201ctotality of the circumstances\u201d test in the context of constitutional challenges to searches and seizures has been defined as a standard which \u201cfocuses on all the circumstances of a particular case, rather than any one factor.\u201d Black\u2019s Law Dictionary 1490 (6th ed. 1990). This definition is likewise applicable for purposes of G.S. \u00a7\u00a7 52-10.2 and 50-6. Consequently, we hold that isolated factors no longer control in determining when parties have \u201crenew[ed] . . . the husband and wife relationship\u201d per G.S. \u00a7 52-10.2. See, e.g., Murphy, 295 N.C. at 397, 245 S.E.2d at 698 (sexual intercourse), and Adamee, 291 N.C. at 392-93, 230 S.E.2d at 546 (resumption of living together in marital home). To resolve the issue, courts must evaluate \u201call the circumstances of a particular case,\u201d Black\u2019s Law Dictionary, supra.\nThe agreement herein was executed subsequent to the enactment of G.S. \u00a7 52-10.2, and therefore the \u201ctotality of the circumstances\u201d test set out in the statute applies to the events of 5 December-11 December 1993. Employing the statutory standard, we hold those events do not constitute \u201csubstantial objective indicia,\u201d Schultz, 107 N.C. App. at 369, 420 S.E.2d at 188, sufficient to justify the trial court\u2019s conclusion \u201cas a matter of law\u201d that plaintiff and defendant reconciled. In addition, the evidence is insufficient to support the court\u2019s ruling that\nbased on the reconciliation of the parties, their words and conduct substantially defeating the purpose of the separation agreement, the executed provisions of the agreement are declared null and void.\nSignificantly, factors cited in Adamee and Schultz as indicative of reconciliation are noticeably absent in the case sub judice. For example, plaintiff never \u201cmoved\u201d back into or resumed cohabitation in the marital home, but instead maintained her separate residence at which she kept her possessions and from which she removed only clothing for work. In addition, the time period involved herein was less than a week, compared with the four and eight month time frames involved in Schultz and Adamee respectively. Further, no evidence in the record reveals the parties resumed the sharing of chores or household responsibilities, that they accompanied each other to public places so as to \u201c[hold] themselves out as husband and wife,\u201d Adamee, 291 N.C. at 392, 230 N.C. at 546, or that they indicated to family and/or friends that their problems had been resolved or that they desired to terminate the separation. To the contrary, plaintiff and defendant continued to abide by the terms of the agreement, distributing property in accordance therewith and relying upon the provisions regarding their children. Moreover, defendant\u2019s statement that he wished plaintiff to leave because \u201che wanted to be with his girlfriend\u201d comprises a compelling indication that no reconciliation with plaintiff occurred.\nFinally, evidence that the parties engaged in sexual intercourse three or four times during this six day period is in no way determinative. Pursuant to G.S. \u00a7 52-10.2, \u201c[i]solated incidents of sexual intercourse . . . shall not constitute resumption of marital relations.\u201d\nTo hold otherwise \u2014 that four hours on each of six evenings spent together in the former marital home eating dinner and visiting with the parties\u2019 children in combination with three or four \u201cisolated acts\u201d of sexual intercourse constitute reconciliation as a matter of law\u2014 would effectively \u201cresurrect Murphy from a well-deserved demise,\u201d Higgins v. Higgins, 321 N.C. 426, 493, 364 S.E.2d 426, 433, reh\u2019g denied, 322 N.C. 116, 367 S.E.2d 911 (1988) (Whichard, J., dissenting), and directly contradict the \u201ctotality of the circumstances\u201d test mandated by G.S. \u00a7 52-10.2.\nII.\nWe similarly reject plaintiff\u2019s reliance upon the trial court\u2019s determination that defendant \u201cmaterial[ly] breachfed]\u201d the agreement. Indeed, plaintiff in her appellate brief implicitly admits the weakness of this position by asserting that\nit is important to note that the Trial Court did not rescind the Separation Agreement by and between the parties, solely or even substantially, because of the [defendant\u2019s] breaches of the Separation Agreement....\n\u201cRescission, an equitable remedy, is allowed to promote justice. The right to rescind does not exist where the breach is not substantial and material and does not go to the heart of an agreement.\u201d Wilson v. Wilson, 261 N.C. 40, 43, 134 S.E.2d 240, 243 (1964). \u201c[Rescission of a separation agreement requires proof of a material breach \u2014 a substantial failure to perform.\u201d Cator v. Cator, 70 N.C. App. 719, 722, 321 S.E.2d 36, 38 (1984) (intermittent payment of alimony for six month period a \u201cmere lapse of performance\u201d and not a \u201csubstantial failure to perform\u201d).\nIn its order, the trial court found as a fact that defendant \u201cbreached\u201d the agreement by: 1) failing to contact plaintiff in reference to dental surgery performed on the parties\u2019 younger son, 2) failing to cancel joint credit card accounts with VISA, J.C. Penny\u2019s, and Sprint, and 3) failing to pay plaintiff the full amount of her interest in defendant\u2019s pension benefits.\nWhile plaintiff properly cites Camp v. Camp, 75 N.C. App. 498, 503, 331 S.E.2d 163, 167, disc. review denied, 314 N.C. 663, 335 S.E.2d 493 (1985), for the proposition that \u201c[w]here the court sits as judge and juror, its findings of fact. . . are conclusive on appeal if there is evidence to support them,\u201d her assertion that the trial court\u2019s determination of materiality is likewise \u201cconclusive on appeal\u201d misses the mark. Assuming arguendo that evidence in the record supports the court\u2019s findings of defendant\u2019s lack of compliance with certain provisions of the agreement, the court\u2019s decree that such \u201cbreaches . . . were material breaches\u201d is a conclusion of law; it is therefore not binding on the appellate court, but reviewable as any question of law. See R. L. Coleman & Co. v. City of Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 109, disc. review denied, 327 N.C. 432, 395 S.E.2d 689 (1990).\nUpon thorough review, we hold defendant\u2019s \u201cbreaches\u201d of certain provisions of the agreement were not material, i.e., they neither \u201csubstantially defeated the purpose\u201d of the agreement, Stegall, 100 N.C. App. at 412, 397 S.E.2d at 314, nor went \u201cto the very heart\u201d of the agreement, Wilson, 261 N.C. at 43, 134 S.E.2d at 242, and could not as a matter of law be characterized as \u201ca substantial failure to perform.\u201d Cator, 70 N.C. App. at 722, 321 S.E.2d at 38. See also Lee v. Lee, 93 N.C. App. 584, 588, 378 S.E.2d 554, 556 (1989) (nondisclosure of $102,000 loan owed to plaintiff\u2019s company was material breach justifying rescission of separation agreement where \u201cessence of the separation agreement was that the parties must fully disclose all of their assets worth $100 or more\u201d), and Stegall, 100 N.C. App. at 411, 397 S.E.2d at 314 (changing title of property in contravention of provision of separation agreement would \u201ceffectively nullify that provision\u201d). The trial court therefore erred in ordering rescission of the agreement on the basis of defendant\u2019s \u201cmaterial breaches\u201d thereof.\nFor the reasons discussed herein, we reverse the trial court\u2019s order directing rescission of the agreement and providing that plaintiff might pursue equitable distribution of the parties\u2019 marital property.\nReversed.\nJudge EAGLES concurs.\nJudge WALKER concurs in separate opinion.",
        "type": "majority",
        "author": "JOHN, Judge."
      },
      {
        "text": "Judge Walker\nconcurring.\nI agree that the parties did not reconcile subsequent to the execution of the separation agreement and that defendant had not materially breached the agreement so as to entitle the plaintiff to recission. Therefore, the parties remain bound by the separation agreement. This Court has stated: \u201cA separation agreement that has not been incorporated into a divorce judgment may be equitably enforced by an order of specific performance.\u201d Harris v. Harris, 50 N.C. App. 305, 312, 274 S.E.2d 489, 493, disc. review denied and appeal dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981); Edwards v. Edwards, 102 N.C. App. 706, 708, 403 S.E.2d 530, 531, disc. review denied, 329 N.C. 787, 408 S.E.2d 518 (1991). Accordingly, if defendant continues to fail to satisfy his obligations pursuant to the agreement, plaintiff may pursue the remedy of specific performance.",
        "type": "concurrence",
        "author": "Judge Walker"
      }
    ],
    "attorneys": [
      "Averette & Barton, by Donald H. Barton, for plaintiff-appellee.",
      ",-C. Dawn Skerrettfor defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "PATRICIA H. FLETCHER, Plaintiff v. RICHARD N. FLETCHER, Defendant\nNo. COA95-626\n(Filed 17 September 1996)\n1. Divorce and Separation \u00a7 36 (NCI4th)\u2014 separation agreement \u2014 rescission of agreement \u2014 reconciliation and subsequent separation \u2014 evidence not sufficient\nThe trial court erred by ordering rescission of the parties\u2019 separation agreement where plaintiff left the marital home and moved into a mobile home which she maintained as a separate residence; the parties entered into a separation agreement; plaintiff returned to the marital home, taking with her one work outfit and toiletry items such as make-up and a toothbrush; the parties spent approximately four hours each evening together from 6 December until 11 December, eating dinner and spending time with their sons; plaintiff returned to her trailer on one occasion for more work clothes; plaintiff and defendant engaged in sexual intercourse three to four times; defendant asked plaintiff to leave on the last day, stating that he wanted to be with his girlfriend; and plaintiff resumed full-time residence in her mobile home on that date. The separation agreement was executed subsequent to the enactment of N.C.G.S. \u00a7 52-10.2 and the \u201ctotality of the circumstances\u201d test applies; evidence that the parties engaged in sexual intercourse three or four times is in no way determinative. The events of 5 December to 11 December 1993 do not constitute \u201csubstantial objective indicia\u201d sufficient to justify the trial court\u2019s conclusion as a matter of law that plaintiff and defendant reconciled; additionally, the evidence was insufficient to support the ruling that the executed provisions of the agreement are null and void based on the parties\u2019 words and conduct substantially defeating the purpose of the separation agreement.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 852-855.\n2. Divorce and Separation \u00a7 42 (NCI4th)\u2014 separation agreement \u2014 recision\u2014breach of agreement \u2014 evidence insufficient\nThe trial court erred by ordering rescission of a separation agreement on the basis of defendant\u2019s \u201cmaterial breaches\u201d where defendant\u2019s breaches were not material, i.e., they neither substantially defeated the purpose of the agreement nor went to the very heart of the agreement. The right to rescind does not exist where the breach is not substantial and material and does not go to the heart of an agreement, and the trial court\u2019s decree that breaches of the agreement were material is a conclusion of law and reviewable as any question of law.\nAm Jur 2d, Divorce and Separation \u00a7 861.\nJudge Walker concurring\nAppeal by defendant from order entered 9 March 1995 by Judge Stephen Franks in Transylvania County District Court. Heard in the Court of Appeals 27 February 1996.\nAverette & Barton, by Donald H. Barton, for plaintiff-appellee.\n,-C. Dawn Skerrettfor defendant-appellant."
  },
  "file_name": "0744-01",
  "first_page_order": 778,
  "last_page_order": 787
}