{
  "id": 8555141,
  "name": "ROBERT LOUIS TUTTLE v. MARGARET GODFREY TUTTLE",
  "name_abbreviation": "Tuttle v. Tuttle",
  "decision_date": "1978-06-06",
  "docket_number": "No. 7721DC601",
  "first_page": "635",
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      "year": 1946,
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    {
      "cite": "226 N.C. 740",
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  "analysis": {
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  "last_updated": "2023-07-14T17:02:41.791978+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Webb concur."
    ],
    "parties": [
      "ROBERT LOUIS TUTTLE v. MARGARET GODFREY TUTTLE"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThere is no evidence in this record that would support a finding that the parties to the lawsuit resumed their marital relationship. The evidence shows that almost a year after defendant left the family home, she returned to visit her children and spent one night with them. In no way does this evidence tend to show that the parties held themselves out as living together. Moreover, such behavior could not reasonably induce others to regard the parties as living together. Where there is no cohabitation nor any intent to resume the marital relationship, interruption of the statutory period should not be found (absent some other extenuating circumstances) from the mere fact of social contact between the parties. Indeed, in this case, plaintiff\u2019s attempts to help maintain contact between his children and their mother should be commended.\nThe situation should be distinguished from those where the physical separation of the parties was not the result of an intention to sever the marital relationship. E.g. Mason v. Mason, 226 N.C. 740, 40 S.E. 2d 204 (1946); Young v. Young, 225 N.C. 340, 34 S.E. 2d 154 (1945). In those cases it could reasonably be inferred that visits between the parties were associations of a character that could reasonably induce others to regard them as living together. In the cases cited, the husband was serving in the armed forces during World War II. Visits between the parties when the husband was on leave and other circumstances disclosed in the record of the cases were not consistent with separation under the statute. In this case, however, the undisputed testimony of plaintiff was to the effect that the parties have lived separate since 3 January 1976, and that defendant\u2019s visit was openly for the purpose of visiting her children.\nThe term \u201cseparate and apart\u201d has been interpreted many times in light of the interest to be protected.\n\u201cSeparation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together. For the purpose of obtaining a divorce under . . . G.S., 50-6, separation may not be predicated upon evidence which shows that during the period the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase.\u201d Young v. Young, 225 N.C. at 344, 34 S.E. 2d at 157.\nSee also Dudley v. Dudley, 225 N.C. 83, 33 S.E. 2d 489 (1945); Earles v. Earles, 29 N.C. App. 348, 224 S.E. 2d 284 (1976).\n\u201c \u2018Separation means cessation of cohabitation, and cohabitation means living together as man and wife, though not necessarily implying sexual relations.\u2019 \u201d In re Estate of Adamee, 291 N.C. 386, 392, 230 S.E. 2d 541, 546 (1976) (quoting Young v. Young, supra).\nThe court\u2019s finding appears to have been based on an erroneous concept of what would legally constitute a resumption of the marital relationship. Plaintiff is, therefore, entitled to a new trial.\nNew trial.\nJudges Parker and Webb concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Graves & Nifong, by Edward M. Ferguson, Jr., for plaintiff appellant."
    ],
    "corrections": "",
    "head_matter": "ROBERT LOUIS TUTTLE v. MARGARET GODFREY TUTTLE\nNo. 7721DC601\n(Filed 6 June 1978)\nDivorce and Alimony \u00a7 13.1\u2014 absolute divorce \u2014 year\u2019s separation \u2014 social contacts \u2014statutory period uninterrupted\nIn an action for divorce based on a year\u2019s separation, the trial court erred in holding that the parties resumed the marital relationship when defendant stayed in plaintiffs home for one night for the purpose of visiting her children who resided with plaintiff, even though the parties did not engage in sexual relations or resume the marital relationship, since, where there is no cohabitation nor any intent to resume the marital relationship, interruption of the statutory period should not be found (absent some other extenuating circumstances) from the mere fact of social contact between the parties.\nAPPEAL by plaintiff from Alexander (Abner), Judge. Judgment entered 23 May 1977 in District Court, FORSYTH County. Heard in the Court of Appeals 25 April 1978.\nPlaintiff filed this action for divorce based on separation for more than one year. Defendant did not file answer. Plaintiff testified at the trial that he and defendant were married in Texas and that two children were born of the marriage. On 3 January 1976, he and defendant separated and have lived continuously separate and apart from each other ever since. Plaintiff retained custody of the children but encouraged defendant to visit them periodically. Defendant visited his home during the Christmas holidays of 1976 for the sole purpose of visiting her children. She spent one night in the home with plaintiff. The children and other members of plaintiff\u2019s family were present. Defendant slept with one of the children, and plaintiff slept in another room. At no time did they have sexual relations or resume the marital relationship.\nThe court found that \u201cplaintiff and defendant resumed the marital relationship as a result of the defendant staying in the home of the plaintiff during the Christmas holidays of 1976.\u201d Plaintiff\u2019s plea for absolute divorce based on a one-year separation was denied.\nGraves & Nifong, by Edward M. Ferguson, Jr., for plaintiff appellant."
  },
  "file_name": "0635-01",
  "first_page_order": 663,
  "last_page_order": 666
}