{ "id": 8958177, "name": "KELLY CRISP LONG, Plaintiff v. CHARLES N. LONG, Defendant", "name_abbreviation": "Long v. Long", "decision_date": "2003-10-21", "docket_number": "No. COA02-1230", "first_page": "664", "last_page": "671", "citations": [ { "type": "official", "cite": "160 N.C. App. 664" } ], "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": "34 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1945, "pin_cites": [ { "page": "153" }, { "page": "198" }, { "page": "154" } ], "opinion_index": 0 }, { "cite": "225 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603012 ], "year": 1945, "pin_cites": [ { "page": "197-98" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0189-01" ] }, { "cite": "483 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "345 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53930, 54000, 53944, 53850, 54107 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0640-04", "/nc/345/0640-03", "/nc/345/0640-05", "/nc/345/0640-02", "/nc/345/0640-01" ] }, { "cite": "474 S.E.2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "807-08" }, { "page": "807" }, { "page": "807" }, { "page": "807-08" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 744", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915394 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "752" }, { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0744-01" ] }, { "cite": "530 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078414 ], "year": 2000, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0019-01" ] }, { "cite": "548 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "144 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435921 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0595-01" ] }, { "cite": "536 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127310 ], "year": 2000, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0362-01" ] }, { "cite": "323 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "71 N.C. App. 805", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526534 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0805-01" ] }, { "cite": "407 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "818" } ], "opinion_index": 0 }, { "cite": "329 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555416 ], "year": 1991, "pin_cites": [ { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0779-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 690, "char_count": 16306, "ocr_confidence": 0.757, "pagerank": { "raw": 2.2870111728298612e-07, "percentile": 0.7858149258895016 }, "sha256": "c26b6d900b51b2e689b8cb972dbeb573904dbe75dab3acd116db3ff48f1df1c7", "simhash": "1:1fafc7267f460d74", "word_count": 2648 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STEELMAN concur." ], "parties": [ "KELLY CRISP LONG, Plaintiff v. CHARLES N. LONG, Defendant" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nThis is an appeal from an order, issued after a bench trial, concluding that the defendant had not breached the parties\u2019 separation agreement. Plaintiff argues on appeal: (1) that the trial court erred as a matter of law in concluding that plaintiff was cohabiting, (2) that the findings of fact were not supported by competent evidence, (3) that the court erred in concluding that defendant had not breached the \u201cno interference\u201d provision, (4) that the court erred in concluding that defendant had not breached the time and method of payment provisions and (5) that the court erred in denying the plaintiffs request for attorneys\u2019 fees.\nPlaintiff and defendant were married on 22 March 1992 and separated on 8 July 1998. The parties are the parents of two minor children. Plaintiff and defendant were granted a divorce on 3 March 2000. An \u201cInterim Separation Agreement\u201d was entered into by the parties on 11 April 2000. This agreement included detailed provisions related to alimony, child support and a \u201cno interference\u201d provision. Under the agreement, defendant was obligated to pay alimony and child support for their two children to the plaintiff by direct deposit from his bank account to hers on the first day of each month, commencing 1 May 2000. The agreement permitted termination of alimony payments upon the occurrence of the first of a list of events. One of these triggering events was \u201ccohabitation by Wife (plaintiff), as that term is defined in N.C.G.S. \u00a7 50-16.9.\u201d The agreement also provided that neither party was to molest or interfere with the other party in any manner.\nDefendant paid the alimony and child support in May and June 2000, but not in the manner prescribed in the agreement. Instead of using the direct deposit method, the defendant paid plaintiff by personal check and payment was late. Plaintiff received the May payments around 4 May 2000 and the June payments around 12 June 2000. During this time, plaintiff and defendant communicated with each other extensively via telephone and email and less frequently in person. The parties\u2019 communication was very strained and rude. Also during this time, plaintiff began dating Mr. Parker Bowers. At the end of June, defendant\u2019s attorney notified plaintiff by letter that defendant would no longer make the alimony payments because of the plaintiff\u2019s cohabitation with Mr. Bowers. On 7 August 2000, plaintiff filed a complaint alleging breach of contract and seeking damages, specific performance, attorneys\u2019 fees, a temporary restraining order and a preliminary injunction. In his answer, defendant denied any breach and further pled plaintiff\u2019s cohabitation as a bar to alimony after June 2000, as allowed by the separation agreement. The trial court denied plaintiff\u2019s claims in an order entered 20 September 2001. Plaintiff appeals.\nPlaintiff contends that the trial court erred as a matter of law in concluding that plaintiff had cohabited as defined in N.C. Gen. Stat. \u00a7 50-16.9. The parties\u2019 separation agreement allowed defendant to stop paying plaintiff alimony upon the occurrence of any one of several events, including \u201ccohabitation by Wife, as that term is defined in N.C.G.S. \u00a7 50-16.9.\u201d N.C. Gen. Stat. \u00a7 50-16.9(b) says:\nAs used in this subsection, cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. Nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes.\nN.C. Gen. Stat. \u00a7 50-16.9(b) (2001). Plaintiff argues that the trial court did not properly apply this statute, because it relied on findings that merely evidenced a dating relationship between plaintiff and Parker Bowers. We disagree.\nPlaintiffs argument focuses on statutory language from the first sentence, \u201cdwelling together continuously and habitually.\u201d Plaintiff discounts that the statute\u2019s second sentence provides that cohabitation is evidenced by certain acts. N.C. Gen. Stat. \u00a7 50-16.9(b). \u201cThe rules of statutory construction require presumptions that the legislature inserted every part of a provision for a purpose and that no part is redundant.\u201d Hall v. Simmons, 329 N.C. 779, 784, 407 S.E.2d 816, 818 (1991). N.C. Gen. Stat. \u00a7 50-16.9(b) clearly says that cohabitation is evidenced by \u201cthe voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.\u201d N.C. Gen. Stat. \u00a7 50-16.9(b). In order for the trial court to conclude that cohabitation has occurred, it should make findings that the type of acts included in the statute were present.\nWhile we conclude that the trial court applied the correct standard, its conclusions based on that standard must still be supported by adequate findings of fact. Here, the trial court\u2019s order lacks adequate findings of fact to support a conclusion of cohabitation because the findings were mere recitations of testimony and evidence. N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) requires that \u201c[i]n all actions tried upon the facts without a jury . . ., the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) (2001). This Court has found that findings that merely recapitulate the testimony or recite what witnesses have said do not meet the standard set by the rule. Chloride, Inc. v. Honeycutt, 71 N.C. App. 805, 323 S.E.2d 368 (1984). Here, the trial court made several findings similar to the following:\n11. Several witnesses for Defendant, including a private detective hired by Defendant, and Bowers\u2019 former girlfriend who lives in the same neighborhood, testified that they had seen vehicles known to be operated by Bowers, including a truck with the name of Bowers\u2019 employer emblazoned on it, in Plaintiff\u2019s driveway or in Plaintiff\u2019s garage overnight on numerous occasions.\n12. The private detective\u2019s report indicated that a vehicle known to be driven by Bowers was at Plaintiff\u2019s house overnight on May 17, 2000; May 18, 2000; May 24, 2000; May 25, 2000; May 26, 2000; May 30, 2000; May 31, 2000; June 2, 2000; June 3, 2000; June 6, 2000; June 9, 2000; June 13, 2000; and June 22, 2000.\nThese findings are inadequate as they are \u201cmere recitations of the evidence and do not reflect the processes of logical reasoning.\u201d Williamson v. Williamson, 140 N.C. App. 362, 364, 536 S.E.2d 337, 339 (2000). As the findings of fact regarding cohabitation are inadequate, the conclusions of law that the plaintiff cohabited and that the defendant was relieved from paying alimony cannot stand. Accordingly, we reverse and remand to the trial court for further findings of fact consistent with this opinion.\nPlaintiff also argues that the trial court erred in concluding that defendant had not breached the separation agreement with regard to the \u201cno interference\u201d provision of the agreement. Separation agreements that have not been incorporated into a divorce judgment are governed by general contract principles and are enforceable and modifiable only under such principles. Jones v. Jones, 144 N.C. App. 595, 548 S.E.2d 565 (2001). The elements of breach of contract are (1) the existence of a valid contract and (2) breach of the terms of the contract. Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). In order for a breach of contract to be actionable it must be a material breach, one that substantially defeats the purpose of the agreement or goes to the very heart of the agreement, or can be characterized as a substantial failure to perform. Fletcher v. Fletcher, 123 N.C. App. 744, 752, 474 S.E.2d 802, 807-08 (1996), disc. rev. denied, 345 N.C. 640, 483 S.E.2d 706 (1997). The trial court\u2019s decision as to whether a breach is material is a conclusion of law and is therefore not binding on appeal, but is reviewable as any other conclusion of law. Id. at 752, 474 S.E.2d at 807.\nThe \u201cno interference\u201d provision of the separation agreement provided:\n1. The parties may and shall continue to live apart for the rest of their lives. Each shall be free from interference, direct or indirect, by the other as fully as though unmarried. Each may for his or her own separate benefit engage in any employment, business or profession he or she may choose.\n2. Neither party will molest or interfere with the other party in any manner, at any time, nor will either party compel or attempt to compel the other party to cohabit or dwell with him or her. Neither party will go on or about the premises of the other without his or her consent.\nThe trial court found:\n25. Defendant admitted in his answer as well as in his trial testimony to making the following statements about or to Plaintiff: \u201cYour day is on the way,\u201d; \u201cAre you scared yet?\u201d; \u201cIt\u2019s finally time for you to pay for what you\u2019ve done,\u201d and, \u201cYou are getting ready to see difficult. You are clueless. Get your head out of his (Bowers\u2019) rear-end and look around.\u201d However, Defendant denied in his answer as well as in his trial testimony that said remarks were in any way verbally abusive or made as a threat to Plaintiff and this Court finds that the evidence at trial tended to show that there was obnoxious conduct between both parties, and that even though Defendant, by his own admissions and testimony, did not always conduct himself in a manner that was best for the parties\u2019 children, neither did Plaintiff.\nThe trial court apparently did find that the conduct on the part of the defendant would be a violation of the \u201cno interference clause\u201d but did not find breach due to plaintiff\u2019s conduct.\nHowever, breach by one party does not automatically excuse the other party\u2019s performance under the separation agreement. In Smith v. Smith, it was held,\n(1) that it is not every violation of the terms of a separation agreement by one spouse that will exonerate the other from performance; (2) that in order that a breach by one spouse of his or her covenants may relieve the other from liability from the latter\u2019s covenants, the respective covenants must be interdependent rather than independent; and (3) that the breach must be of a substantial nature, must not be caused by the fault of the complaining party, and must have been committed in bad faith.\nSmith v. Smith, 225 N.C. 189, 197-98, 34 S.E.2d 148, 153 (1945). In Smith, the Court found that the husband\u2019s duty to pay alimony was independent of the wife\u2019s duty to not interfere with her former husband. Id. at 198, 34 S.E.2d at 154. Here, the \u201cno interference\u201d provision of the separation agreement is independent from any other provision of the agreement. There is nothing to indicate that a failure by the plaintiff to abide by any provision authorizes the defendant to breach the \u201cno interference\u201d provision. We see no conduct by the plaintiff which would excuse the defendant\u2019s admitted conduct. We conclude that the defendant\u2019s conduct did rise to the level of \u201cinterference, molestation and harassment.\u201d Accordingly, we reverse the trial court\u2019s conclusion that defendant had not substantially interfered with or harassed plaintiff.\nPlaintiff also argues that the trial court erred in failing to find that defendant breached the time and method of payment provisions of the separation agreement. Breach of contract is a conclusion of law reviewable by this Court. Fletcher, 123 N.C. App. at 752, 474 S.E.2d at 807. There was a breach of the agreement\u2019s terms here. It is undisputed that defendant failed to pay the plaintiff by direct deposit or by the first of the month in either May or June. However, to be actionable, the breach must substantially defeat the purpose of the contract or be characterized as a substantial failure to perform. Id. at 752, 474 S.E.2d at 807-08. Here, the plaintiff did receive the required support payments. While the deviation in method of payment might have been inconvenient, the deviation did not substantially defeat the purpose of the agreement nor was it a substantial failure to perform. Accordingly, this assignment of error fails.\nPlaintiff further argues that the trial court erred in failing to award her attorneys\u2019 fees. The separation agreement allowed:\nIn the event either party shall institute an action to enforce the provisions of this agreement, the party prevailing in said action, whether by adjudication or settlement, shall be entitled to recover their suit costs, including attorney\u2019s fees at a reasonable hourly rate, from the other party.\nThe separation agreement only allows the award of attorneys\u2019 fees to the prevailing party in an action. The trial court did not have the authority to modify this contract. Since plaintiffs claims were denied by the trial court, the trial court could not award attorneys\u2019 fees to the plaintiff. However, this issue may be reconsidered by the trial court in light of our conclusion that defendant breached the \u201cno interference\u201d clause of the separation agreement.\nAffirmed in part, remanded in part.\nJudges MCCULLOUGH and STEELMAN concur.", "type": "majority", "author": "EAGLES, Chief Judge." } ], "attorneys": [ "The Sandlin Law Firm, by Deborah Sandlin and John Patrick McNeil, for plaintiff-appellant.", "Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for defendant-appellee." ], "corrections": "", "head_matter": "KELLY CRISP LONG, Plaintiff v. CHARLES N. LONG, Defendant\nNo. COA02-1230\n(Filed 21 October 2003)\n1. Divorce\u2014 separation agreement \u2014 alimony\u2014cohabitation\nThe trial court erred by concluding as a matter of law that plaintiff wife had cohabitated as defined under N.C.G.S. \u00a7 50-16.9, thus allowing defendant husband to stop paying plaintiff alimony in accordance with the parties\u2019 separation agreement, because the trial court\u2019s order lacked adequate findings of fact to support a conclusion of cohabitation when the findings were mere recitations of testimony and evidence.\n2. Divorce\u2014 separation agreement \u2014 no interference provision\nThe trial court erred by concluding that defendant husband had not breached the parties\u2019 unincorporated separation agreement with regard to the \u201cno interference\u201d provision based on plaintiff wife\u2019s conduct even though it found defendant\u2019s conduct would be a violation of the clause, because: (1) breach by one party does not automatically excuse the other party\u2019s performance under the separation agreement; (2) the parties\u2019 \u201cno interference\u201d provision is independent from any other provision of their separation agreement, and there is nothing to indicate that a failure by plaintiff to abide by any provision authorizes defendant to breach the \u201cno interference\u201d provision; and (3) there was no conduct by plaintiff that would excuse defendant\u2019s admitted conduct.\n3. Divorce\u2014 separation agreement \u2014 time and method of payment provisions\nThe trial court did not err by failing to find that defendant husband breached the time and method of payment provisions of the separation agreement even though defendant failed to pay plaintiff wife by direct deposit or by the first of the month in either May or June 2000, because: (1) to be actionable, the breach must substantially defeat the purpose of the contract or be characterized as a substantial failure to perform, and plaintiff received the support payments; and (2) while the deviation in method of payment might have been inconvenient, the deviation did not substantially defeat the purpose of the agreement, nor was it a substantial failure to perform.\n4. Costs\u2014 attorney fees \u2014 enforcement of separation agreement\nAlthough the trial court did not err by failing to award plaintiff wife attorney fees based on plaintiffs claims being denied by the trial court, this issue may be reconsidered by the trial court in light of the Court of Appeals\u2019 conclusion that defendant breached the \u201cno interference\u201d clause of the parties\u2019 separation agreement.\nAppeal by plaintiff from judgment entered 28 September 2001 by Judge Paul G. Gessner in Wake County District Court. Heard in the Court of Appeals 8 September 2003.\nThe Sandlin Law Firm, by Deborah Sandlin and John Patrick McNeil, for plaintiff-appellant.\nCheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for defendant-appellee." }, "file_name": "0664-01", "first_page_order": 694, "last_page_order": 701 }