{ "id": 11094799, "name": "In the Matter of the Estate of MICHAEL ALLEN MONTGOMERY", "name_abbreviation": "In re Estate of Montgomery", "decision_date": "2000-04-18", "docket_number": "No. COA99-681", "first_page": "564", "last_page": "569", "citations": [ { "type": "official", "cite": "137 N.C. App. 564" } ], "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": "12 S.W. 387", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1889, "pin_cites": [ { "page": "390", "parenthetical": "statute requiring spouse \"live[] in adultery\" \"does not mean that [spouse] shall constantly live with one man in adultery ...[,] but if she admits any man or men to her periodically. .. such conduct constitutes ... living in adultery within the meaning of the statute\"" } ], "opinion_index": 0 }, { "cite": "89 Ky. 318", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2347493 ], "year": 1889, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ky/89/0318-01" ] }, { "cite": "55 Ind. 243", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1490974 ], "year": 1876, "pin_cites": [ { "page": "255", "parenthetical": "\"[l]iving in adultery means living in the practice of adultery\"" } ], "opinion_index": 0, "case_paths": [ "/ind/55/0243-01" ] }, { "cite": "409 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "900", "parenthetical": "adultery can be shown by circumstantial evidence of opportunity and inclination to commit adultery" }, { "page": "898, 902-03" } ], "opinion_index": 0 }, { "cite": "330 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509699 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "148", "parenthetical": "adultery can be shown by circumstantial evidence of opportunity and inclination to commit adultery" }, { "page": "144, 152" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0143-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787", "parenthetical": "\"[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion\"" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171", "parenthetical": "\"[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion\"" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830", "parenthetical": "genuine issue of material fact is \"one which can be maintained by substantial evidence\"" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534", "parenthetical": "genuine issue of material fact is \"one which can be maintained by substantial evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "67 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "645", "parenthetical": "determination is finding of fact if it requires \"logical reasoning from the evidentiary facts\"" } ], "opinion_index": 0 }, { "cite": "234 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623503 ], "year": 1951, "pin_cites": [ { "page": "472", "parenthetical": "determination is finding of fact if it requires \"logical reasoning from the evidentiary facts\"" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0463-01" ] }, { "cite": "38 S.E. 731", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1901, "pin_cites": [ { "page": "732", "parenthetical": "statute requires a showing husband was \" 'liv[ing] in adultery,' \" and showing of \"adultery alone\" is insufficient" } ], "opinion_index": 0 }, { "cite": "128 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659124 ], "year": 1901, "pin_cites": [ { "page": "172", "parenthetical": "statute requires a showing husband was \" 'liv[ing] in adultery,' \" and showing of \"adultery alone\" is insufficient" } ], "opinion_index": 0, "case_paths": [ "/nc/128/0170-01" ] }, { "cite": "59 S.E. 692", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1907, "pin_cites": [ { "page": "692", "parenthetical": "causes for absolute divorce include: \" '(1) If either party shall separate from the other and live in adultery' and \" '(2) If the wife shall commit adultery' \"" } ], "opinion_index": 0 }, { "cite": "146 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270704 ], "year": 1907, "pin_cites": [ { "page": "226", "parenthetical": "causes for absolute divorce include: \" '(1) If either party shall separate from the other and live in adultery' and \" '(2) If the wife shall commit adultery' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/146/0225-01" ] }, { "cite": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "year": 1990, "pin_cites": [ { "page": "738-39" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "497 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "348 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659938 ], "year": 1998, "pin_cites": [ { "page": "34-35" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0029-01" ] } ], "analysis": { "cardinality": 660, "char_count": 13434, "ocr_confidence": 0.766, "pagerank": { "raw": 7.852428153049272e-08, "percentile": 0.4587925782545623 }, "sha256": "3e3b0c7121f8246d5db87a33a262eb5fdb35c4f6e617d081ea0a8808cfda213f", "simhash": "1:38af68f21079223a", "word_count": 2218 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "In the Matter of the Estate of MICHAEL ALLEN MONTGOMERY" ], "opinions": [ { "text": "GREENE, Judge.\nCharles Allen Montgomery and Janice S. Montgomery (collectively, Petitioners) appeal an order filed 17 February 1999 granting a motion by Karen Montgomery (Respondent) for summary judgment.\nThe record shows that Michael Allen Montgomery (Decedent) and Respondent were married on 2 November 1995, and one child was born to the marriage. The parties separated sometime prior to 20 June 1998. Decedent died on 20 June 1998, and on 30 June 1998 the Clerk of the Superior Court of Forsyth County issued Respondent Letters of Administration to administer Decedent\u2019s estate pursuant to N.C. Gen. Stat. \u00a7 28A-6-1.\nOn 25 August 1998, Petitioners filed a Petition for Revocation of Letters of Administration Issued to Respondent (the Petition) pursuant to N.C. Gen. Stat. \u00a7 28A-9-1(a)(1). The Petition alleged that in February of 1998 Respondent \u201cwillfully and without just cause abandoned [Decedent] and refused to live with him, and was not living with him at the time of his death.\u201d The Petition also alleged that at the time of Decedent\u2019s death Respondent was \u201cliving in adultery not condoned by [Decedent].\u201d\nOn 4 December 1998, Respondent filed a Response to Petition for Revocation of Letters of Administration Issued to Respondent (the Response). Respondent admitted in the Response that she and Decedent \u201cwere living separate and apart at the time of [Decedent\u2019s] death,\u201d and denied Petitioners\u2019 allegation she was \u201cliving in adultery\u201d at the time of Decedent\u2019s death. The Response contained a motion to dismiss the Petition on the ground Petitioners lacked standing to bring an action for revocation of Letters of Administration, and a motion for summary judgment on the ground no genuine issue of material fact existed.\nOn 4 December 1998, Respondent filed an affidavit with the trial court stating she \u201cdid not abandon [her] husband, commit adultery, or live in adultery.\u201d In an affidavit filed with the trial court on 4 December 1998, Respondent\u2019s landlord stated the terms of Respondent\u2019s lease restricted occupancy of Respondent\u2019s mobile home, and Respondent was not permitted to occupy the mobile home with \u201ca man to whom she was not married.\u201d The affidavit also stated the landlord \u201creceived no complaints from any neighbors of any improper occupancy of [Respondent\u2019s mobile home, and the landlord] frequently traveled] by the property and never saw any vehicles which did not belong there.\u201d Finally, in a 4 December 1998 affidavit, Cynthia Diane Martin, a \u201cclose friend[]\u201d of Respondent, stated Respondent \u201chad no other romantic interests, and . . . was not involved in any sexual relationships with anyone else.\u201d\nThe record also contains affidavits in support of the Petition, submitted to the trial court by Brian Amen (Amen), Ben Blevins (Blevins), and Mandy Stewart (Stewart). Amen\u2019s affidavit, executed on 16 December 1998, stated he \u201cwas a close personal friend to [Decedent],\u201d and he had \u201cpersonal knowledge the [Respondent] was having an affair . . . during the course of her marriage.\u201d Amen made the following statements in his affidavit: \u201cI have observed [Respondent] kissing, hugging, and dancing with Matthew Davis at the Country Corral Dance Club and Bar in February of 1998 when she was married to [Decedent]\u201d; and \u201cI have observed [Respondent] and Matthew Davis kissing, hugging and laying all over each other on a couch in February of 1998 at my home where they stayed until approximately 4:30 to 5:00 a.m.\u201d Blevins\u2019 affidavit, executed 16 December 1998, stated Blevins is an acquaintance of Respondent, and Respondent had, on several occasions, called Blevins\u2019 house and asked Blevins and his wife to \u201ccover for her and call her in the event [Decedent] called [Blevins\u2019] house looking for her . . . [because] she had told [Decedent] she was staying with [Blevins] when in fact she was going to see Matthew Davis.\u201d Blevins\u2019 affidavit also stated that \u201c[i]n approximately February of 1998 [Blevins] spoke with [Respondent] several times in which she asked [Blevins] to call her back at her house ... so that if [Decedent] tried to dial *69 it would trace back to [Blevins\u2019] phone and not to the phone of Matthew Davis.\u201d Finally, Stewart\u2019s affidavit, executed on 15 December 1998, stated that \u201c[f]rom November of 1997 through February of 1998 on approximately 8 occasions [Respondent] has called me asking me to call her back . . . [and] it is clear to me that her reasons for asking me to call her back were to avoid [Decedent\u2019s] attempts to conduct a *69 call search.\u201d\nIn an order filed 17 February 1999, the trial court granted Respondent\u2019s motion for summary judgment on the ground \u201cthere is no genuine issue as to any material fact and . . . Respondent is entitled to a judgment as a matter of law.\u201d The record does not contain the trial court\u2019s ruling on Respondent\u2019s motion to dismiss.\nThe dispositive issue is whether the record raises a genuine issue of material fact regarding whether Respondent was \u201cliv[ing] in adultery\u201d at the time of Decedent\u2019s death.\nLetters of Administration which have been issued to the spouse of a decedent may be revoked on the ground the spouse has lost her right to administer the estate pursuant to N.C. Gen. Stat. \u00a7 31A-1(a)(2). N.C.G.S. \u00a7 28A-9-1(a)(1) (1999); N.C.G.S. \u00a7 28A-4-2(7) (1999). A spouse loses her right to administer her spouse\u2019s estate under section 31A-1(a)(2) when she \u201cvoluntarily separates from the other spouse and lives in adultery and such has not been condoned.\u201d N.C.G.S. \u00a7 31A-1(a)(2) (1999).\nRespondent argues the phrase \u201clives in adultery\u201d requires a showing the adulterous spouse was residing with the party with whom she was committing adultery. Petitioners argue a single act of adultery can constitute \u201cliv[ing] in adultery.\u201d\nBecause the word \u201cliv[ing]\u201d is ambiguous, we are unable to look to the plain meaning of \u201cliv[ing]\u201d to determine its meaning. See State v. Bates, 348 N.C. 29, 34-35, 497 S.E.2d 276, 279 (1998). When language in a statute is ambiguous, this Court may look to the purpose of the statute to ascertain legislative intent. State v. Tew, 326 N.C. 732, 738-39, 392 S.E.2d 603, 607 (1990). The purpose of Chapter 31A is to prevent a person from \u201cprofiting] by his own wrong,\u201d and the legislature has stated Chapter 31 \u201cshall be construed broadly\u201d in order to achieve that purpose. N.C.G.S. \u00a7 31A-15 (1999). The broadest construction of section 31A-1(a)(2), the construction requiring the least showing to disqualify a spouse, would disqualify a spouse upon a showing of a single act of adultery. We reject this construction based on our legislature\u2019s previous distinction between \u201ccommitting adultery\u201d and \u201cliv[ing] in adultery.\u201d See Pendergast v. Pendergast, 146 N.C. 225, 226, 59 S.E. 692, 692 (1907) (causes for absolute divorce include: \u201c \u2018(1) If either party shall separate from the other and live in adultery\u2019 and \u201c \u2018(2) If the wife shall commit adultery\u2019 \u201d) (quoting N.C.G.S. \u00a7 1285 (1883)); Setzer v. Setzer, 128 N.C. 170, 172, 38 S.E. 731, 732 (1901) (statute requires a showing husband was \u201c \u2018liv[ing] in adultery,\u2019 \u201d and showing of \u201cadultery alone\u201d is insufficient) (quoting N.C.G.S. \u00a7 1285 (1883)). \u201cCommitt[ing] adultery\u201d can consist of a single act of adultery. Robert E. Lee, 1 North Carolina Family Law \u00a7 65, at 319 (4th ed. 1979). It thus follows that \u201cliv[ing] in adultery\u201d requires a showing of something more than \u201ccommitting] adultery,\u201d or a single act of adultery.\nWe also reject Respondent\u2019s argument that \u201cliv[ing] in adultery\u201d should be limited to those \u201cresiding\u201d in adultery. This construction is not consistent with the stated legislative directive that the statute be construed \u201cbroadly.\u201d This is so because such a construction would permit spouses to engage in habitual adultery with those with whom they do not reside and nevertheless be qualified to administer their decedent spouse\u2019s estate under section 28A-6-1.\nConsidering the legislative history and the purpose of section 31A-l(a)(2), we construe \u201cliv[ing] in adultery\u201d to mean a spouse engages in repeated acts of adultery within a reasonable period of time preceding the death of her spouse. Whether the evidence establishes a spouse is \u201cliv[ing] in adultery\u201d is a question of fact to be determined by the trier of fact. See Woodard v. Mordecai, 234 N.C. 463, 472, 67 S.E.2d 639, 645 (1951) (determination is finding of fact if it requires \u201clogical reasoning from the evidentiary facts\u201d).\nIn this case, the trial court correctly entered summary judgment for Respondent because the evidence, considered in the light most favorable to Petitioners, does not reveal a genuine issue of material fact with respect to whether Respondent was \u201cliv[ing] in adultery.\u201d See Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971) (genuine issue of material fact is \u201cone which can be maintained by substantial evidence\u201d); State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990) (\u201c[substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion\u201d). At best the evidence merely shows that some four months prior to Decedent\u2019s death, Respondent kissed a man in a bar, kissed that same man in a house and lay \u201call over\u201d him while she was on a couch with other people around, and talked with him several times on the telephone. Indeed, the evidence fails to raise a genuine issue of material fact regarding whether Respondent committed any acts of adultery. See In re Estate of Trogdon, 330 N.C. 143, 148, 409 S.E.2d 897, 900 (1991) (adultery can be shown by circumstantial evidence of opportunity and inclination to commit adultery).\nAffirmed.\nJudges WALKER and TIMMONS-GOODSON concur.\n. Although a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure is treated as a motion for summary judgment when \u201cmatters outside the pleading are presented to and not excluded by the court,\u201d N.C.G.S. \u00a7 1A-1, Rule 12(b) (1999), the record in this case does not contain any matters outside the parties\u2019 pleadings regarding Respondent\u2019s motion to dismiss for lack of standing. Respondent\u2019s motion to dismiss, therefore, was not treated as a motion for summary judgment and, because the record contains no ruling on the motion, we do not address the issue of whether Petitioners had standing to bring the Petition. See N.C.R. App. P. 10(b)(1).\n. Respondent admitted in her affidavit she and Decedent \u201cwere living separate and apart at the time of [Decedent\u2019s] death,\u201d and, therefore, we do not address this issue.\n. A term is ambiguous if it has more than one meaning, and a layman would be unable to determine which meaning is intended. 73 Am. Jur. 2d Statutes, \u00a7 195, at 392 (1974). Because the term \u201clive\u201d may be defined as \u201creside; dwell,\u201d or may be defined as \u201cconduct[ing] one\u2019s life in a particular manner,\u201d The American Heritage College Dictionary 793 (3rd ed. 1993), and a layman would be unable to determine which definition was intended by the legislature, the term is ambiguous.\n. Respondent cites In re Estate of Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991), for the proposition section 31A-l(a)(2) requires a showing a spouse is residing with the person with whom she has committed adultery. In Trogdon, however, the only issue before the court was whether the spouse was having an adulterous relationship with the person with whom she was residing and, although the parties in Trogdon were residing together, the Trogdon court did not hold section 31A-1(a)(2) requires a showing the parties were residing together. Trogdon, 330 N.C. at 144, 152, 409 S.E.2d at 898, 902-03.\n. We note our holding in this case is consistent with the case law of other states which have decided this issue. See, e.g. Goodwin v. Owen, et. al, 55 Ind. 243, 255 (1876) (\u201c[l]iving in adultery means living in the practice of adultery\u201d); see also Goss, &C v. Froman, &C, 89 Ky. 318, 329, 12 S.W. 387, 390 (1889) (statute requiring spouse \u201clive[] in adultery\u201d \u201cdoes not mean that [spouse] shall constantly live with one man in adultery ...[,] but if she admits any man or men to her periodically. .. such conduct constitutes ... living in adultery within the meaning of the statute\u201d).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Peebles & Schramm, by John J. Schramm, Jr. and Erin L. Williams, for petitioner-appellants.", "Kenneth Clayton Dawson, for respondent-appellee." ], "corrections": "", "head_matter": "In the Matter of the Estate of MICHAEL ALLEN MONTGOMERY\nNo. COA99-681\n(Filed 18 April 2000)\n1. Estate Administration\u2014 letters of administration \u2014 petition to revoke \u2014 living in adultery \u2014 definition\nThe phrase \u201cliving in adultery\u201d in N.C.G.S. \u00a7 31A-l(a)(2) is construed to mean that a spouse engages in repeated acts of adultery within a reasonable period of time preceding decedent\u2019s death.\n2. Estate Administration\u2014 letters of administration \u2014 petition to revoke \u2014 living in adultery \u2014 insufficient evidence\nThe trial court did not err by granting summary judgment for respondent on a petition to revoke her letters of administration for her husband\u2019s estate on allegations that she was living in adultery under N.C.G.S. \u00a7 31A-l(a)(2), but the evidence at best merely shows that respondent kissed a man in a bar, kissed that same man in a house, lay \u201call over\u201d him on a couch with other people present, and talked with him several times on the telephone.\nAppeal by petitioners from order filed 17 February 1999 by Judge Henry E. Frye, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 14 March 2000.\nPeebles & Schramm, by John J. Schramm, Jr. and Erin L. Williams, for petitioner-appellants.\nKenneth Clayton Dawson, for respondent-appellee." }, "file_name": "0564-01", "first_page_order": 596, "last_page_order": 601 }