{ "id": 9000460, "name": "CAROLYN H. OAKLEY, Plaintiff v. JON H. OAKLEY, Defendant", "name_abbreviation": "Oakley v. Oakley", "decision_date": "2004-08-17", "docket_number": "No. COA03-915", "first_page": "859", "last_page": "865", "citations": [ { "type": "official", "cite": "165 N.C. App. 859" } ], "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": "293 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "663-64" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525197 ], "year": 1982, "pin_cites": [ { "page": "406-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0404-01" ] }, { "cite": "336 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 808", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525512 ], "year": 1985, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0808-01" ] }, { "cite": "573 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "229", "parenthetical": "quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251662 ], "year": 2002, "pin_cites": [ { "page": "677", "parenthetical": "quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0672-01" ] }, { "cite": "34 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607057 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0340-01" ] }, { "cite": "270 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562983, 8562966, 8563063, 8563096, 8563038 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0556-02", "/nc/300/0556-01", "/nc/300/0556-04", "/nc/300/0556-05", "/nc/300/0556-03" ] }, { "cite": "264 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549152 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0082-01" ] }, { "cite": "426 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545059, 2550093, 2548975, 2548374, 2544791 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0347-02", "/nc/333/0347-04", "/nc/333/0347-03", "/nc/333/0347-01", "/nc/333/0347-05" ] }, { "cite": "420 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "190" }, { "page": "189" }, { "page": "190" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. 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Stat.", "opinion_index": 0 }, { "cite": "588 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "3" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958177 ], "year": 2003, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0664-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 8, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "298 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "342" }, { "page": "342" } ], "opinion_index": 0 }, { "cite": "307 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562460 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "386" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0381-01" ] } ], "analysis": { "cardinality": 627, "char_count": 13517, "ocr_confidence": 0.738, "pagerank": { "raw": 2.2074464281477614e-07, "percentile": 0.775862994329013 }, "sha256": "d8d189c719321065f93eb2b7183d11ea81f8259e7d4948a1a85ce7b2563d4c47", "simhash": "1:85a8da6e774b1c54", "word_count": 2212 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUNTER concur." ], "parties": [ "CAROLYN H. OAKLEY, Plaintiff v. JON H. OAKLEY, Defendant" ], "opinions": [ { "text": "THORNBURG, Judge.\nThis is an appeal from an order, issued after a bench trial, concluding that plaintiff had not lost her alimony rights due to cohabitation and finding defendant in contempt of a previous court order. Plaintiff and defendant were married on or about 25 February 1983 and separated on 30 December 1997. The parties are the parents of one child. A \u201cSeparation Agreement and Property Settlement Agreement\u201d (\u201cthe agreement\u201d) was entered into by the parties on 20 March 1998. This agreement was incorporated into a divorce judgment granted to the parties on 27 October 1999. The agreement included many detailed provisions, including one related to alimony for plaintiff. Under the agreement, defendant was obligated to pay to plaintiff alimony \u201cthrough June 30, 2005 or until . . . WIFE\u2019S [plaintiff\u2019s] cohabitation with a person of the opposite sex to whom she is unrelated by blood or marriage, whichever event shall first occur.\u201d\nDefendant paid alimony to plaintiff until April of 2000. At some point in May of 2000, defendant\u2019s attorney sent plaintiff a letter informing her that defendant would no longer pay her alimony due to her cohabitation with Richard Smith. On 7 November 2001, plaintiff filed a motion for contempt against defendant due to his failure to pay alimony and several other failures to comply with the separation agreement that are not at issue here. Defendant in turn made a motion under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(6) to vacate the court\u2019s order of alimony due to plaintiff\u2019s cohabitation. The trial court found that plaintiff was not cohabiting and found defendant in contempt of the court order for not paying alimony.\nWe first note that defendant erred in moving to terminate alimony under Rule 60(b)(6). \u201c[W]henever the parties bring their separation agreements before the court for the court\u2019s approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments.\u201d Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). When the parties submitted their separation agreement to the court, it became a court order and subject to the rules concerning such orders. N.C. Gen. Stat. \u00a7 50-16.9 clearly outlines the procedure for modifying or vacating alimony awards. \u201cWhere one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability.\u201d Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985). Defendant should have moved to terminate the alimony award under N.C. Gen. Stat. \u00a7 50-16.9, not Rule 60(b)(1). However, the motion was assessed under the standards of N.C. Gen. Stat. \u00a7 50-16.9 by the trial court and we will review the matter as if defendant had in fact made the motion under that statute.\nOn appeal, defendant argues that the trial court erred in concluding that plaintiff did not cohabit with Smith and that the trial court erred in finding him in contempt of court for not paying alimony. \u201c[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)..\nDefendant first argues that the trial court erred in concluding that plaintiff did not cohabit with Smith. The parties are not in disagree- \u2022 ment as to the essential facts presented before the trial court. Rather, defendant is arguing that the trial court erred as a matter law in its application of N.C. Gen. Stat. \u00a7 50-16.9(b). Defendant asserts that the facts presented met the definition of cohabitation as provided in the statute. N.C- Gen. Stat. \u00a7 50-16.9(b) defines cohabitation:\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) (2003).\nThe evidence presented in this case, through the testimony of the parties, their son and the plaintiff\u2019s neighbor, primarily addressed plaintiff and Smith\u2019s intimate relationship and the number of nights that Smith spent at plaintiff\u2019s home. The trial court also received some testimony as to plaintiff and Smith taking overnight trips, having dinners together and watching television together. We also note that there was evidence that plaintiff and Smith were engaged to be married at the time of the hearing, though there was no evidence presented that plaintiff and Smith were engaged at the time that defendant ceased paying alimony.\nThis Court recently emphasized that \u201c[i]n order for the trial court to conclude that cohabitation has occurred, it should make findings that the type of acts included in the statute [N.C. Gen. Stat. \u00a7 50-16.9(b)] were present.\u201d Long v. Long, 160 N.C. App. 664, 667, 588 S.E.2d 1, 3 (2003). Thus, in order for a trial court to conclude that one party has engaged in cohabitation, there must be evidence that the party engaged in the \u201cvoluntary 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).\nThe holding in Long is in line with how our courts have dealt with issues of cohabitation in another context, the resumption of marital relations. Under N.C. Gen. Stat. \u00a7 52-10.1, married couples may execute separation agreements, however the executory terms of a separation agreement are terminated upon the \u201cresumption of the marital relation.\u201d In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976). N.C. Gen. Stat. \u00a7 52-10.2 defines the resumption of marital relations as the \u201cvoluntary 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 martial relations.\u201d N.C. Gen. Stat. \u00a7 52-10.2 (2003). The cases that apply this statute address whether married couples have reconciled and resumed cohabitation by looking at the particular circumstances that evidence a husband and wife relationship. We find these cases instructive in determining what constitutes marital rights, duties and obligations under N.C. Gen. Stat. \u00a7 50-16.9.\nOur courts use one of two methods to determine whether the parties have resumed their marital relationship, depending on whether the parties present conflicting evidence about the relationship. See Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993). In the first test, developed from Adamee, where there is objective evidence, that is not conflicting, that the parties have held themselves out as man and wife, the court does not consider the subjective intent of the parties. Schultz, 107 N.C. App. at 373, 420 S.E.2d at 190. The other test grew out of the opinion in Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, disc. rev. denied, 300 N.C. 556, 270 S.E.2d 107 (1980), and addresses cases where the objective evidence of cohabitation is conflicting and thus allows for an evaluation of the parties\u2019 subjective intent. Schultz, 107 N.C. App. at 371, 420 S.E.2d at 189.\nThe only conflict in the objective evidence presented in the instant case was the number of nights per week that Smith spent the night at plaintiff\u2019s home. We find the objective test announced in Adamee and applied in Schultz instructive in this instance. The court in Adamee, quoting Young v. Young, 225 N.C. 340, 34 S.E.2d 154 (1945), said that \u201ccohabitation means living together as man and wife, though not necessarily implying sexual relations. Cohabitation includes other marital responsibilities and duties.\u201d Adamee, 291 N.C. at 392, 230 S.E.2d at 546. This Court in Schultz applied the Adamee test and found cohabitation based on evidence such as the fact that the former husband kept an automobile at the common residence, lived in the residence continuously, moved his belongings to the residence, paid the utility bills and mowed the- lawn. Schultz, 107 N.C. App. at 373, 420 S.E.2d at 190. The Court also considered that the former wife did the laundry, worked in the yard with the former husband and engaged in sexual relations with him. Id.\nAs defendant in the instant case presented no evidence of activities beyond plaintiff\u2019s and Smith\u2019s sexual relationship and their occasional trips and dates, we see no assumption of any \u201cmarital rights, duties, and obligations which are usually manifested by married people,\u201d such as those outlined in Schultz. Thus, the trial court did not err in concluding that plaintiff had not cohabited. Accordingly, the trial court did not err in denying defendant\u2019s motion to terminate alimony.\nDefendant also argues that the trial court erred in finding him in contempt of the court order for not paying alimony. As we noted above, separation agreements approved by the court and incorporated into a judgment are treated as court orders and are \u201cenforceable by the contempt powers of the court.\u201d Walters, 307 N.C. at 386, 298 S.E.2d at 342. N.C. Gen. Stat. \u00a7 5A-21 states in part:\nFailure to comply with an order of a court is a continuing civil contempt as long as:\n(1) The order remains in force;\n(2) The purpose of the order may still be served by compliance with the order;\n(2a) The noncompliance by the person to whom the order is directed is willful; and\n(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.\nN.C. Gen. Stat. \u00a7 5A-21(a) (2003). \u201cThis Court\u2019s review of a trial court\u2019s finding of contempt is limited to a consideration of \u2018whether the findings of fact by the trial judge are supported by competent evidence and whether those factual findings are sufficient to support the judgment.\u2019 \u201d General Motors Acceptance Corp. v. Wright, 154 N.C. App. 672, 677, 573 S.E.2d 226, 229 (2002) (quoting McMiller v. McMiller, 77 N.C. App. 808, 810, 336 S.E.2d 134, 136 (1985)).\n\u201cA defendant in a civil contempt action will be fined or incarcerated only after a determination is made that the defendant is capable of complying with the order of the court.\u201d Reece v. Reece, 58 N.C. App. 404, 406-07, 293 S.E.2d 662, 663-64 (1982). Thus, a trial court must first make a finding of a defendant\u2019s present ability to comply with an order before concluding that a defendant is in civil contempt of an order. In the instant case, the trial court\u2019s only finding of fact regarding defendant\u2019s contempt was:\nThe Defendant\u2019s willful failure to comply with the court\u2019s previous order is willful and without legal justification and therefore Defendant is in contempt of this court.\nAs there was no determination in the trial court\u2019s findings of the defendant\u2019s present ability to comply with the terms of the order in question, we reverse and remand to the trial court for further findings of fact consistent with this opinion.\nAffirmed in part, reversed and remanded in part.\nChief Judge MARTIN and Judge HUNTER concur.", "type": "majority", "author": "THORNBURG, Judge." } ], "attorneys": [ "Dawn Sheekfor plaintiff-appellee.", "Dotson, Kirkman & Morris, LLP, by Marshall F. Dotson, III, for defendant-appellant." ], "corrections": "", "head_matter": "CAROLYN H. OAKLEY, Plaintiff v. JON H. OAKLEY, Defendant\nNo. COA03-915\n(Filed 17 August 2004)\n1. Divorce\u2014 alimony \u2014 separation agreement \u2014 procedure for modifying or vacating alimony\nDefendant husband erred by moving to terminate alimony under Rule 60(b)(6), because: (1) when the parties submitted their separation agreement to the court, it became a court order and was subject to the rules concerning such orders; and (2) N.C.G.S. \u00a7 50-16.9 outlines the procedure for modifying or vacating alimony awards.\n2. Divorce\u2014 alimony \u2014 separation agreement \u2014 cohabitation\nThe trial court did not err by concluding that plaintiff wife did not cohabitate with a person of the opposite sex to whom she was unrelated by blood or marriage in violation of the parties\u2019 separation agreement, because defendant husband failed to present evidence of activities beyond plaintiff and her boyfriend\u2019s sexual relationship and their occasional trips and dates to show the assumption of marital rights, duties, and obligations which are usually manifested by married people.\n3. Contempt\u2014 civil \u2014 failure to pay alimony \u2014 ability to comply\nThe trial court erred by finding defendant husband in contempt of court for willful failure to pay alimony to plaintiff wife in accordance with the parties\u2019 incorporated separation agreement, because there was no determination in the trial court\u2019s findings of defendant\u2019s present ability to comply with the terms of the order.\nAppeal by defendant from order entered 21 October 2002 by Judge William L. Daisy in Guilford County District Court. Heard in the Court of Appeals 26 April 2004.\nDawn Sheekfor plaintiff-appellee.\nDotson, Kirkman & Morris, LLP, by Marshall F. Dotson, III, for defendant-appellant." }, "file_name": "0859-01", "first_page_order": 891, "last_page_order": 897 }