{ "id": 6769079, "name": "RODNEY WILSON SOREY, Plaintiff v. MELISSA LYNN SOREY, Defendant", "name_abbreviation": "Sorey v. Sorey", "decision_date": "2014-05-06", "docket_number": "No. COA13-987", "first_page": "682", "last_page": "688", "citations": [ { "type": "official", "cite": "233 N.C. App. 682" } ], "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": "409 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "330 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509699 ], "year": 1991, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0143-01" ] }, { "cite": "743 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "194, 642" } ], "opinion_index": 0 }, { "cite": "738 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "551 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "205", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437574 ], "year": 2001, "pin_cites": [ { "page": "362", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0356-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-16.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "493 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "338" }, { "page": "339", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 54", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652013 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "56" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0054-01" ] }, { "cite": "610 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "270" }, { "page": "365" }, { "page": "270" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470105 ], "year": 2005, "pin_cites": [ { "page": "364-65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0358-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "735 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4355488, 4349729, 4347618, 4352038, 4350407, 4346671, 4356475, 4348703 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0417-07", "/nc/366/0417-04", "/nc/366/0417-06", "/nc/366/0417-01", "/nc/366/0417-05", "/nc/366/0417-02", "/nc/366/0417-03", "/nc/366/0417-08" ] }, { "cite": "732 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "599 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "927", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 859", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000460 ], "year": 2004, "pin_cites": [ { "page": "861", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0859-01" ] }, { "cite": "321 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680069, 4685382, 4684653, 4686961, 4685335 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0760-03", "/nc/311/0760-02", "/nc/311/0760-04", "/nc/311/0760-05", "/nc/311/0760-01" ] }, { "cite": "311 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525579 ], "year": 1984, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0522-01" ] }, { "cite": "507 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "319" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200649 ], "year": 1998, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0409-01" ] }, { "cite": "285 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "281" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527082 ], "year": 1981, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0250-01" ] } ], "analysis": { "cardinality": 614, "char_count": 12754, "ocr_confidence": 0.719, "pagerank": { "raw": 4.4793276177203605e-08, "percentile": 0.280874097292931 }, "sha256": "c2e7077abb67578d9748e61b66532d4aee239f6476ab0f3478e87c4eb2b39613", "simhash": "1:99e86ce7d6cf1ffa", "word_count": 2005 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Jr., Robert N. and DILLON concur." ], "parties": [ "RODNEY WILSON SOREY, Plaintiff v. MELISSA LYNN SOREY, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nMelissa Sorey (\u201cdefendant\u201d) appeals from an order entered 13 May 2013 denying her request for post-separation support on the basis of marital misconduct. We affirm.\nI. Background\nRodney Sorey (\u201cplaintiff\u2019) and defendant were married on 11 July 1987 and separated on 27 August 2011. The parties have four adult children and one minor niece whom they have raised as one of their children. Plaintiff filed an action for absolute divorce in Beaufort County on 28 December 2012. Defendant answered and raised a counterclaim for post-separation support and alimony. Plaintiff then replied, alleging that defendant had committed marital misconduct prior to the date of separation in that she had \u201cconstructively abandoned the Plaintiff by dumping his clothes on the front porch of his son\u2019s residence and by repeated illicit liaisons with various men\u201d and that she \u201chas engaged in illicit sexual behavior during the marriage and before the separation with other men.\u201d\nThe trial court held a hearing on the issue of post-separation support on 29 April 2013. At the hearing, the trial court took evidence and heard testimony by the parties and two of their adult sons. By order entered 13 May 2013, the trial court denied defendant\u2019s request for post-separation support because it found that defendant had committed two forms of marital misconduct: illicit sexual behavior and abandonment. Defendant filed written notice of appeal from the trial court\u2019s order on 17 May 2013.\nII. Appellate Jurisdiction\nDefendant appeals from the trial court\u2019s denial of her motion for post-separation support. Post-separation support orders are interlocutory. Stephenson v. Stephenson, 55 N.C. App. 250, 251, 285 S.E.2d 281, 281 (1981). Although orders allowing post-separation support do not affect a substantial right, see, e.g., Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319 (1998), that rule does not apply where the dependent spouse\u2019s request for post-separation support was denied by the trial court, Mayer v. Mayer, 66 N.C. App. 522, 525, 311 S.E.2d 659, 662, disc. rev. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).\nHere, the trial court denied defendant\u2019s request for post-separation support. Defendant asserts that the trial court\u2019s order affects a substantial right. Plaintiff does not contend otherwise. Under Mayer, we hold that the trial court\u2019s order affects a substantial right and that defendant\u2019s appeal is properly before this Court.\nIII. Post-separation Support\nA. Standard of Review\nIn reviewing an order concerning post-separation support we must consider \u201cwhether 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 Oakley v. Oakley, 165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (citation and quotation marks omitted). \u201cThe trial court\u2019s findings need only be supported by substantial evidence to be binding on appeal. We have defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d Peltzer v. Peltzer,___ N.C. App._,_, 732 S.E.2d 357, 359 (citations and quotation marks omitted), disc. rev. denied, 366 N.C. 417, 735 S.E.2d 186 (2012).\nB. Analysis\nDefendant argues that the trial court erred in denying her request for post-separation support because its finding that she abandoned her husband was unsupported by the evidence. We disagree.\nPost-separation support is \u201cspousal support to be paid until the earlier of either the date specified in the order of postseparation support, or an order awarding or denying alimony.\u201d N.C. Gen. Stat. \u00a7 50-16.1A(4) (2003). A dependent spouse is entitled to post-separation support if the court finds \u201cthe resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.\u201d N.C. Gen. Stat. \u00a7 50-16.2A(c) (2003). Factors such as the parties\u2019 standard of living, income, income earning abilities, debt, living expenses and legal obligations to support other persons are considered in determining the financial needs of the parties. N.C. Gen. Stat. \u00a7 50-16.2A(b) (2003). In addition, the judge shall consider marital misconduct by the dependent spouse, occurring prior to or on the date of separation, and also any marital misconduct by the supporting spouse. N.C. Gen. Stat. \u00a7 50-16.2A(d) (2003). Acts of \u201cmarital misconduct\u201d include sexual acts, N.C. Gen. Stat. \u00a7 14-27.1(4) (2003), voluntarily engaged in with someone other than a spouse, N.C. Gen. Stat. \u00a7 50-16.lA(3)(a) (2003) and \u201c[ijndignities rendering the condition of the other spouse intolerable and life burdensome.\u201d N.C. Gen. Stat. \u00a7 50-16.lA(3)(f)(2003).\nEvans v. Evans, 169 N.C. App. 358, 364-65, 610 S.E.2d 264, 270 (2005). If the trial court finds that the dependent spouse committed marital misconduct, that finding alone may be sufficient reason for the trial court to conclude the supporting spouse is not entitled to post-separation support and deny such a request. Id. at 365, 610 S.E.2d at 270.\nOne form of marital misconduct is abandonment. N.C. Gen. Stat. \u00a7 50-16.lA(3)(c) (2013). \u201cAbandonment occurs where one spouse brings the cohabitation to an end (1) without justification, (2) without consent, and (3) without intention of renewing the marital relationship.\u201d Hanley v. Hanley, 128 N.C. App. 54, 56, 493 S.E.2d 337, 338 (1997).\nHere, the trial court specifically found that defendant \u201cabandoned the Plaintiff by discontinuing the marital cohabitation without just cause or excuse.\u201d The trial court based its ultimate finding on the following findings:\n15. Some time prior to August 27, 2011 the Plaintiff advised the Defendant that she wanted them to move to the residence which she now occupies . . . and the Plaintiff told her that he did not wish the family to move to this location.\n16.On August 27, 2011, while the Plaintiff was at work, the Defendant moved to [the residence she now occupies], and also moved the Plaintiffs clothes to the front porch and in the front yard of the residence [of the parties\u2019 son].\n17. The Plaintiff learned of this move through a phone call' from a friend which he received at work, and he returned to North Carolina the next day to find his clothes on the porch and in the front yard of the [son\u2019s] residence ....\n18. The Defendant advised the Plaintiff by telephone that she had decided to move, that she had found someone else and that she did not want him anymore.\n19. The Plaintiff did not provoke or condone the actions of the Defendant set forth above.\nDefendant contends that the trial court\u2019s finding of abandonment was unsupported by competent evidence. She argues that the actual date she left the marital residence was in September 2011, after the date of separation, which the trial court found to be 27 August 2011. She also challenges finding 17 as unsupported by competent evidence. Finally, defendant contends that because she told plaintiff in advance that she was moving and plaintiff said he did not want to move with her, he consented to the separation.\n\u201cWhen an application is made for postseparation support, the court may base its award on a verified pleading, affidavit, or other competent evidence.\u201d N.C. Gen. Stat. \u00a7 50-16.8 (2013). \u201cThe trial court is in the best position to weigh the evidence, determine the credibility of witnesses and the weight to be given their testimony.\u201d Goodson v. Goodson, 145 N.C. App. 356, 362, 551 S.E.2d 200, 205 (2001) (citation and quotation marks omitted). \u201cIt is elementary that the fact finder may believe all, none, or only part of a witness\u2019 testimony. In re T.J.C.,_N.C. App. _,_, 738 S.E.2d 759, 765 (citation, quotation marks, and brackets omitted), disc. rev. denied,_N.C._, 743 S.E.2d 194, 194, 642 (2013).\nEach of the trial court\u2019s findings of fact was supported by plaintiff\u2019s testimony at the hearing. Plaintiff testified to the facts as recited by the trial court. Although there was conflicting evidence on a number of points and the evidence regarding the timing of these events was unclear, it is the trial court\u2019s duty to resolve such conflicts and ambiguity in its findings. \u201cWhile contrary inferences might have been drawn from this same evidence, it was the trial judge\u2019s prerogative to determine which inferences should be drawn and which inferences should not be.\u201d In re Estate of Trogdon, 330 N.C. 143, 152, 409 S.E.2d 897, 902 (1991). The inferences drawn here by the trial court were reasonable and supported by evidence introduced at the hearing.\nWe also disagree with defendant\u2019s assertion that the trial court\u2019s findings show that plaintiff consented to the separation. Defendant informed plaintiff that she was moving. Plaintiff responded that he did not want to move. As a result, defendant left the marital home, deposited plaintiff\u2019s belongings at their son\u2019s house, and told plaintiff that she did not want him anymore. The trial court clearly disbelieved defendant\u2019s testimony that plaintiff had been abusive, severely abused alcohol, had engaged in numerous adulterous relationships, or otherwise behaved in a maimer which might justify defendant\u2019s abandonment of the marital home.\nMere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary or affect the right to divorce or alimony. Nor, under such circumstances, is the innocent party obliged to protest, to exert physical force or other importunity to prevent the other party from leaving.\nThe trial court\u2019s findings are conclusive if supported by any competent evidence, even when the record contains evidence to the contrary. Moreover, since there is no all-inclusive definition as to what will justify abandonment, each case must be determined in large measure upon its own circumstances.\nHanley, 128 N.C. App. at 57, 493 S.E.2d at 339 (citations and quotation marks omitted).\nPlaintiff was under no obligation to explicitly protest defendant\u2019s decision to leave the marital home, and his failure to object does not necessarily constitute consent. Plaintiff testified, and the trial court found, that he only became aware that defendant was leaving the marital home while he was away on work. When he found out, he called her and she informed him that she no longer wanted him and that she had found someone else.\nWe conclude that the trial court\u2019s finding that defendant had abandoned the marital home was supported by competent evidence. We further conclude that the trial court\u2019s finding that plaintiff did not consent to defendant\u2019s abandonment was supported by competent evidence. These findings support the trial court\u2019s conclusion that defendant had committed marital misconduct and its ultimate decision to deny defendant post-separation support. Accordingly, we affirm the trial court\u2019s order denying defendant\u2019s request for post-separation support.\nIV. Conclusion\nWe affirm the trial court\u2019s order denying defendant post-separation support because its findings on abandonment are supported by competent evidence, those findings support its conclusions of law, and its ultimate decision to deny defendant post-separation support.\nAFFIRMED.\nJudges HUNTER, Jr., Robert N. and DILLON concur.\n. As the findings on abandonment are sufficient to support the trial court\u2019s order, we ' need not address defendant\u2019s arguments regarding the findings on illicit sexual behavior.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Hassell, Singleton, Mason & Jones, P.A., by Sid Hassell, Jr., for plaintiff-appellee.", "Windy H. Rose, for defendant-appellant." ], "corrections": "", "head_matter": "RODNEY WILSON SOREY, Plaintiff v. MELISSA LYNN SOREY, Defendant\nNo. COA13-987\nFiled 6 May 2014\n1. Appeal and Error \u2014 interlocutory orders and appeals \u2014 denial of post-separation support \u2014 affects substantial right\nDefendant\u2019s appeal from the denial of her request for post-separation support was heard on the merits. While orders for post-separation support are not immediately appealable, orders denying post-separation support affect a substantial right and are immediately appealable.\n2. Divorce \u2014 post-separation support \u2014 abandonment\u2014sufficient evidence\nThe trial court did not err by denying defendant\u2019s request for post-separation support because its finding that she abandoned her husband was supported by the evidence, as was its finding that plaintiff did not consent to defendant\u2019s abandonment. These findings support the trial court\u2019s conclusion that defendant had committed marital misconduct and its ultimate decision to deny defendant post-separation support.\nAppeal by defendant from Order entered 13 May 2013 by Judge Darrell B. Cayton, Jr. in District Court, Beaufort County. Heard in the Court of Appeals 23 January 2014.\nHassell, Singleton, Mason & Jones, P.A., by Sid Hassell, Jr., for plaintiff-appellee.\nWindy H. Rose, for defendant-appellant." }, "file_name": "0682-01", "first_page_order": 692, "last_page_order": 698 }