{ "id": 8527363, "name": "IN THE MATTER OF THE ESTATE OF SHIRLEY ALLRED TUCCI", "name_abbreviation": "In re the Estate of Tucci", "decision_date": "1989-07-05", "docket_number": "No. 8821SC793", "first_page": "428", "last_page": "441", "citations": [ { "type": "official", "cite": "94 N.C. App. 428" } ], "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": "329 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "684", "parenthetical": "release of equitable distribution executed after separation held void after reconciliation" }, { "page": "685" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 1985, "pin_cites": [ { "page": "693", "parenthetical": "release of equitable distribution executed after separation held void after reconciliation" }, { "page": "694" } ], "opinion_index": 0 }, { "cite": "347 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "upholding cash payments as part of property settlement even though obligation executory when parties resumed sexual relations" } ], "opinion_index": 0 }, { "cite": "317 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772074, 4774829, 4780174, 4779446, 4777177 ], "year": 1986, "pin_cites": [ { "parenthetical": "upholding cash payments as part of property settlement even though obligation executory when parties resumed sexual relations" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0704-01", "/nc/317/0704-05", "/nc/317/0704-02", "/nc/317/0704-03", "/nc/317/0704-04" ] }, { "cite": "339 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "upholding cash payments as part of property settlement even though obligation executory when parties resumed sexual relations" }, { "page": "488" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521530 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "upholding cash payments as part of property settlement even though obligation executory when parties resumed sexual relations" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0465-01" ] }, { "cite": "317 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "100", "parenthetical": "\"public policy . . . permits spouses to execute property settlement at any time, regardless of whether they separate immediately thereafter or not\"" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526484 ], "year": 1984, "pin_cites": [ { "page": "488", "parenthetical": "\"public policy . . . permits spouses to execute property settlement at any time, regardless of whether they separate immediately thereafter or not\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0483-01" ] }, { "cite": "704 F. 2d 709", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1854748, 6127159 ], "year": 1983, "pin_cites": [ { "page": "712", "parenthetical": "under North Carolina law, spouses must separate or intend to separate immediately to execute valid support waiver under Section 52-10.1" } ], "opinion_index": 0, "case_paths": [ "/f2d/704/0709-01", "/br/29/0709-01" ] }, { "cite": "120 S.E. 2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "424", "parenthetical": "Section 5240(a) would not validate antenuptial waiver of support" } ], "opinion_index": 0 }, { "cite": "255 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568025 ], "year": 1961, "pin_cites": [ { "page": "193", "parenthetical": "Section 5240(a) would not validate antenuptial waiver of support" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0190-01" ] }, { "cite": "344 S.E. 2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "119", "parenthetical": "spouses are fiduciaries until they separate, retain counsel and negotiate as adversaries" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522612 ], "year": 1986, "pin_cites": [ { "page": "297", "parenthetical": "spouses are fiduciaries until they separate, retain counsel and negotiate as adversaries" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0295-01" ] }, { "cite": "333 S.E. 2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527354 ], "year": 1985, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0395-01" ] }, { "cite": "192 S.E. 2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "303", "parenthetical": "distinguishing between property division and support provisions of consent judgment" } ], "opinion_index": 0 }, { "cite": "282 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564353 ], "year": 1972, "pin_cites": [ { "page": "291-92", "parenthetical": "distinguishing between property division and support provisions of consent judgment" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0287-01" ] }, { "cite": "364 S.E. 2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "pin_cites": [ { "page": "428" }, { "page": "428", "parenthetical": "majority approvingly stated holding was consistent with Buffington and Love" }, { "page": "491" }, { "page": "432", "parenthetical": "Whichard, J., dissenting" }, { "page": "485" }, { "page": "429" } ], "opinion_index": 0 }, { "cite": "321 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568606 ], "weight": 2, "pin_cites": [ { "page": "484" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0482-01" ] }, { "cite": "90 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1955, "pin_cites": [ { "page": "549" }, { "page": "549-50", "parenthetical": "citations omitted" }, { "page": "549" }, { "page": "550", "parenthetical": "reconciliation does not \"abrogate\" division of property" } ], "opinion_index": 0 }, { "cite": "243 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623607 ], "weight": 3, "year": 1955, "pin_cites": [ { "page": "261" }, { "page": "262" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0259-01" ] }, { "cite": "230 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "545" }, { "page": "545" } ], "opinion_index": 0 }, { "cite": "291 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558339 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0386-01" ] }, { "cite": "379 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "277", "parenthetical": "emphasis added" }, { "page": "280" }, { "page": "277", "parenthetical": "concerning equitable distribution and duty of support" }, { "page": "279", "parenthetical": "reconciliation would rescind property settlement only if settlement depended on parties living separate and apart" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528396 ], "year": 1989, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0614-01" ] }, { "cite": "354 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "implying release of right to equitable distribution" }, { "page": "232" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "weight": 3, "year": 1987, "pin_cites": [ { "parenthetical": "implying release of right to equitable distribution" }, { "page": "294" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "66 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "parenthetical": "implying release of curtesy right" } ], "opinion_index": 0 }, { "cite": "234 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619594 ], "year": 1951, "pin_cites": [ { "parenthetical": "implying release of curtesy right" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0162-01" ] }, { "cite": "307 S.E. 2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "property settlement release barred testamentary share under will" } ], "opinion_index": 0 }, { "cite": "309 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760621, 4766477, 4761397, 4760311, 4766783 ], "year": 1983, "pin_cites": [ { "parenthetical": "property settlement release barred testamentary share under will" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0322-04", "/nc/309/0322-02", "/nc/309/0322-01", "/nc/309/0322-05", "/nc/309/0322-03" ] }, { "cite": "302 S.E. 2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "property settlement release barred testamentary share under will" }, { "page": "927", "parenthetical": "quoting 2 R. Lee, North Carolina Family Law Sec. 187 at 461 (4th ed. 1980)" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522823 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "property settlement release barred testamentary share under will" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0425-01" ] }, { "cite": "200 S.E. 2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "complete property settlement barred rights as surviving spouse of intestate" }, { "page": "625", "parenthetical": "implying release of right to dissent as surviving spouse of intestate under Section 29-13" } ], "opinion_index": 0 }, { "cite": "284 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562175 ], "weight": 2, "year": 1973, "pin_cites": [ { "parenthetical": "complete property settlement barred rights as surviving spouse of intestate" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0407-01" ] }, { "cite": "208 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "673-74" } ], "opinion_index": 0 }, { "cite": "285 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569776 ], "year": 1974, "pin_cites": [ { "page": "720-21" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0717-01" ] }, { "cite": "281 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574244, 8574215, 8574280, 8574226, 8574263 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0543-03", "/nc/303/0543-01", "/nc/303/0543-05", "/nc/303/0543-02", "/nc/303/0543-04" ] }, { "cite": "277 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646656 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0670-01" ] }, { "cite": "267 S.E. 2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "293 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562660, 8562636, 8562737, 8562710, 8562685 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/293/0253-02", "/nc/293/0253-01", "/nc/293/0253-05", "/nc/293/0253-04", "/nc/293/0253-03" ] }, { "cite": "255 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547735 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0044-01" ] }, { "cite": "358 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724867, 4729541, 4725739, 4731630, 4730074 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0166-04", "/nc/320/0166-05", "/nc/320/0166-02", "/nc/320/0166-01", "/nc/320/0166-03" ] }, { "cite": "354 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169671 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0138-01" ] }, { "cite": "74 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. 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Cf. N.C.G.S. Sec. 30-1 (1984). The Tuccis were married on 4 November 1978 and had one child in 1980. On 18 November 1983, the parties executed a separation/property settlement agreement (the \u201cAgreement\u201d) which stated the parties had separated on 15 October 1983. Although the first page of the Agreement is titled \u201cSeparation Agreement,\u201d the Agreement\u2019s fourteen paragraphs are preceded by other titles including, \u201cCustody,\u201d \u201cSupport,\u201d \u201cDebts,\u201d and \u201cProperty Settlement.\u201d The Agreement recited that \u201cit is understood and agreed that the division of the property in this Separation Agreement and Property Settlement is a full and complete distribution of the marital and separate property of the parties in a manner deemed by the parties to be equitable under the laws of North Carolina, including North Carolina G.S. 50-20.\u201d (Emphasis added.) The parties divided various items of real and personal property and released each other from the duty of support and \u201cany and all other rights which may have arisen . . . out of the . . . marriage.\u201d The Agreement stated with respect to Mr. Tucci that:\nThe said husband . . . does hereby release and relinquish unto the said wife, her heirs, administrators, executors, and assigns, all rights or claims of curtesy, inheritance, descent, distribution and all other rights or claims growing out of the marital relationship between the parties . . . and the said husband shall forever be barred from all rights in the estate of the said wife, real, personal and mixed, now owned or hereafter acquired by her.\nParagraph 12 of the Agreement also stated:\n[T]he provisions of this Separation Agreement and Property Settlement are executed and in full force and effect on this date and that should at any time in the future the parties resume marital cohabitation in any respect that the provisions of the Separation Agreement and Property Settlement are and shall remain valid and fully enforceable, and of full legal force and effect. [Emphasis added.]\nIn late December 1983, the couple reconciled and lived together until sometime in September 1985. In December 1985, the parties s entered a Consent Judgment for divorce from bed and board; however, as the Consent Judgment contained no findings on any of the grounds for divorce from bed and board under Section 50-2, this court upheld a court order setting aside the Consent Judgment as void. Allred v. Tucci, 85 N.C. App. 138, 354 S.E. 2d 291, cert. denied, 320 N.C. 166, 358 S.E. 2d 47 (1987).\nMrs. Tucci died on 20 March 1986. After her will was probated, Mr. Tucci filed his notice of dissent. Pursuant to its authority as an ex officio probate judge with original jurisdiction under Section 7A-241 and Section 28A-2-1, the clerk of superior court entered, among others, the following findings and conclusions:\n10. That the testatrix and the surviving spouse separated and executed a Separation Agreement on or about November 18, 1983. Subsequent thereto, on or about Christmas Day of 1983, the parties reconciled and resumed their marital relations and lived together in the family homeplace as husband and wife with their minor child through mid-September 1985.\n11. That between Christmas Day, 1983 and mid-September, 1985, the testatrix and her surviving spouse travelled together to Mexico, to Lake Tahoe, California, with their child, to Kiawah Island, South Carolina, with their child, entertained friends and family in their home, filed joint federal and state income tax returns, attended church together, shared a bedroom in the family homeplace, and held themselves out as man and wife in the ordinary acceptation of the descriptive phrase.\n12. That the surviving spouse did not execute or deliver a quitclaim deed to the homeplace as called for in the Separation Agreement, and further, the deceased testatrix continued, after Christmas Day, 1983, to support the surviving spouse and minor child of the marriage in the same manner in which she had, prior to the parties\u2019 separation.\n14. That the conduct of the parties to the Separation Agreement occurring after Christmas Day, 1983, exhibited the intent on their parts to reconcile, resume their marital relations, hold themselves out as husband and wife, and rescind the terms and provisions of the Separation Agreement.\nBased upon the foregoing findings of fact, the court MAKES THE FOLLOWING CONCLUSIONS OF LAW:\n4. That the parties\u2019 reconciliation and the resumption of their marital relationship together with their other manifestations of intent to do so, as hereinabove described, did rescind the terms and provisions of the November 18th, 1983 Separation Agreement, as by North Carolina law provided.\n5. That the right of the surviving spouse to dissent from the will of testatrix arose as of the date of her death, and a waiver of that right necessarily required the surviving spouse not to do a particular thing in the future and was, therefore, an executory provision.\nIt is, therefore, ordered, adjudged, and decreed that James Michael Tucci, the surviving spouse of Shirley Allred Tucci has the right under the law of North Carolina to dissent from the will of the decedent, and that the dissent ... is valid . . . and hereby allowed pursuant to the laws of the State of North Carolina.\nThe Estate appealed to a judge of the superior court under Section 1-272. The superior court held the clerk\u2019s findings were supported by competent evidence and supported its conclusions of law. The court consequently affirmed the clerk\u2019s order allowing the dissent. The Estate appeals.\nAlthough the Estate assigns numerous errors to the proceedings below, the dispositive issue is whether the clerk correctly concluded that the Tuccis\u2019 resumption of their marital relationship rescinded Mr. Tucci\u2019s release of all rights in Mrs. Tucci\u2019s estate. Under the facts of this case, we conclude the Tuccis\u2019 reconciliation did not imply any rescission of the provisions of the Agreement settling the parties\u2019 property rights, including the provision releasing the parties\u2019 statutory right to dissent under Section 30-1. As there is no other evidence of rescission nor any other ground asserted that might invalidate Mr. Tucci\u2019s release of his rights as a surviving spouse, we hold the Agreement barred Mr. Tucci\u2019s statutory right to dissent under Section 30-1.\nThe statutory right to dissent as a surviving spouse under Section 30-1 is analogous to the former common law spousal rights of dower and curtesy. Etheridge v. Etheridge, 41 N.C. App. 44, 255 S.E. 2d 729 (1979), disc. rev. denied, 293 N.C. 253, 267 S.E. 2d 660 (1980). Taking a share of the deceased spouse\u2019s estate under the circumstances specified in Section 30-1 is a statutory alternative to taking under the deceased spouse\u2019s will. Hill v. Smith, 51 N.C. App. 670, 277 S.E. 2d 542, disc. rev. denied, 303 N.C. 543, 281 S.E. 2d 392 (1981). In addition, a couple may elect before or after marriage to forego all such spousal property rights pursuant to a complete property settlement; for example,\n[i]t is well-settled in this jurisdiction that a man and woman contemplating marriage may enter into a valid contract with respect to the property and property rights of each after the marriage, and such contracts will be enforced as written. . . . After marriage the persons may release and quitclaim any rights as they might respectively acquire or may have acquired by marriage in the property of each other. G.S. 52-10. . . . Antenuptial contracts, when properly executed and acknowledged, are not against public policy and may act as a bar to the . . . right to dissent . . .\nIn re Loftin, 285 N.C. 717, 720-21, 208 S.E. 2d 670, 673-74 (1974); see also Lane v. Scarborough, 284 N.C. 407, 200 S.E. 2d 622 (1973) (complete property settlement barred rights as surviving spouse of intestate); Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E. 2d 924, disc. rev. denied, 309 N.C. 322, 307 S.E. 2d 167 (1983) (property settlement release barred testamentary share under will). As we stated in Sedberry, \u201cto restore to one party, subsequent to the death of the other, rights bargained away in the separation agreement, would deny the agreement its intended \u2018full and final\u2019 effect, in contravention of the policy that such agreements \u2018shall be legal, valid, and binding in all respects.\u2019 \u201d Sedberry, 62 N.C. App. at 429, 302 S.E. 2d at 927 (quoting 2 R. Lee, North Carolina Family Law Sec. 187 at 461 (4th ed. 1980)).\nAlthough Mr. Tucci\u2019s release did not enumerate the statutory right to dissent under Section 30-1, it did release \u201call rights or claims of curtesy, inheritance, descent, and distribution and all other rights or claims growing out of the marital relationship between the parties . . . [and] all rights in the estate of the said wife, real, personal and mixed, now owned or hereafter acquired by her.\u201d This full and final settlement of such rights encompasses the unenumerated statutory right of dissent under Section 30-1. See Lane, 284 N.C. at 412, 200 S.E. 2d at 625 (implying release of right to dissent as surviving spouse of intestate under Section 29-13); Blankenship v. Blankenship, 234 N.C. 162, 66 S.E. 2d 680 (1951) (implying release of curtesy right); see also Hagler v. Hagler, 319 N.C. 287, 354 S.E. 2d 228 (1987) (implying release of right to equitable distribution).\nAlthough one spouse may not unilaterally cancel a valid marital contract, both spouses may rescind the contract by executing an agreement to that effect. See 17 Am. Jur. 2d, Contracts Sec. 490 at 962 (2d ed. 1964). Clearly, that did not occur in this case. Instead, Mr. Tucci asserted below that his reconciliation with Mrs. Tucci in December 1983 rescinded the Agreement by implication. Whether or not the parties\u2019 reconciliation rescinded Mr. Tucci\u2019s release of his right to dissent is initially determined by examining the Agreement and the parties\u2019 subsequent conduct in light of ordinary contract principles. As the Hagler Court stated with respect to marital contracts in general, \u201c \u2018The heart of a contract is the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.\u2019 . . . When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law. The court determines the effect of their agreement by declaring its legal meaning . . . .\u201d Hagler, 319 N.C. at 294, 354 S.E. 2d at 234 (citations omitted).\nFurthermore, the trial court must recognize the differing effects of reconciliation on the individual provisions of a single agreement which combines a \u201cseparation agreement\u201d with a \u201cproperty settlement\u201d:\n[I]t is particularly necessary to distinguish between \u2018property settlements\u2019 and \u2018separation agreements\u2019 in determining the intended effects of marital agreements: \u2018A separation agreement is a contract between spouses providing for marital support rights and is executed while the parties are separated or are planning to separate immediately. A property settlement provides for a division of real and personal property held by the spouses. The parties may enter a property settlement at any time, regardless of whether they contemplate separation or divorce\u2019. . . It is true that contract provisions covering both support duties and property rights are usually included in a single document which the parties refer to as a \u2018separation agreement.\u2019 . . . However, noting the label attached to a provision of a marital agreement is no substitute for analyzing the provision\u2019s intended effect in light of the agreement\u2019s express language and purposes.\nSmall v. Small, 93 N.C. App. 614, 379 S.E. 2d 273, 277 (1989) (emphasis added) (citations omitted). Our Supreme Court has stated that, \u201cthe heart of a separation agreement is the parties\u2019 intention and agreement to live separate and apart forever ...\u201d In re Adamee, 291 N.C. 386, 391, 230 S.E. 2d 541, 545 (1976). Therefore, \u201ca separation agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption of the marital relation . . .\u201d Id. However, a property settlement \u201ccontains provisions . . . which might with equal propriety have been made had no separation been contemplated . . Jones v. Lewis, 243 N.C. 259, 261, 90 S.E. 2d 547, 549 (1955). Therefore,\nwhere the agreement for separation includes a division of property which might have been made if no separation had taken place, the reconciliation does not abrogate this division . . . If an agreement between husband and wife providing for their separation goes beyond the terms of a mere separation deed and is in effect a good voluntary settlement of the husband on his wife, a subsequent reconciliation between the parties cannot affect the agreement so far as it constitutes a settlement. Hence, the settlement must stand notwithstanding the reconciliation.\nId. at 61-62, 90 S.E. 2d at 549-50 (citations omitted). As we summarized in Small:\nThus, under Jones, the resumption of relations does not necessarily rescind a property settlement \u2018which might with equal propriety have been made had no separation been contemplated\u2019 since there is no presumption that a division of property rights is necessarily founded on the parties\u2019 desire to separate and live apart. Conversely, where a provision of a marital contract is necessarily founded on the parties\u2019 agreement to live separate and apart, the parties\u2019 resumption of the marital relationship does rescind the provision insofar as the provision is executory . . . [citation omitted]. Finally, since the parties\u2019 express intent in the agreement is the touchstone for construing the agreement, there may certainly be hybrid agreements which expressly condition property settlement provisions on the parties\u2019 living separate and apart. E.g., Higgins [v. Higgins, 321 N.C. 482, 484, 364 S.E. 2d 426, 428 (enforcing parties\u2019 express agreement to convey land only if they lived separate and apart for one year)].\nSmall, 93 N.C. App. at ---, 379 S.E. 2d at 280.\nWith reference to the contract principle' of implied rescission, it is well settled that \u201ca contract may be rescinded or discharged by acts or conduct of the parties inconsistent with the continued existence of the contract, and mutual assent to abandon a contract may be inferred from the attendant circumstances and conduct of the parties . . . [T]o be sufficient the acts and conduct must be positive and unequivocal.\" 17 Am. Jur. 2d, Contracts Sec. 494 at 967 (2d ed. 1964). Even if rescission is inferred from the parties\u2019 conduct, only those provisions of the marital contract that remain executory are rescinded. See Adamee, 291 N.C. at 391, 230 S.E. 2d at 545. A partial rescission may be allowed \u201cwhere the contract is a divisible one and the ground of rescission relates merely to a severable part thereof.\u201d 17 Am. Jur. 2d, Contracts Sec. 488 at 959. Generally speaking, the provisions of a marital contract dividing real and personal property are severable from provisions concerning alimony or support since \u201c[t]here is a clear distinction between a property settlement and the discharge of the obligation to support.\u201d Shoaf v. Shoaf, 282 N.C. 287, 291-92, 192 S.E. 2d 299, 303 (1972) (distinguishing between property division and support provisions of consent judgment); see also 2 R. Lee, North Carolina Family Law Sec. 187 at 463 (4th ed. 1980) (whether provision is part of property settlement or separation agreement depends upon intention of parties derived from contract terms).\nAs the Agreement repeatedly refers to itself as a \u201cSeparation Agreement\u201d and \u201cProperty Settlement\u201d the Agreement is by its own term a combined separation agreement and property settlement. (Given the principles stated previously, we do not believe the Clerk\u2019s references to the Agreement as the \u201cSeparation Agreement\u201d are of dispositive legal significance.) Like the statutory right to equitable distribution, the statutory right to dissent does not affect any marital duties of support and may be released under a valid property settlement. Cf. Small, 93 N.C. App. at ---, 379 S.E. 2d at 277 (concerning equitable distribution and duty of support); see also Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E. 2d 228, 232 (1987). While the provisions of the Agreement dealing with the parties\u2019 living separate and apart and issues of custody and support contemplate the parties\u2019 continued separation, the Agreement \u201cgoes beyond the terms of a mere separation deed and is in effect a good voluntary settlement\u201d of the parties\u2019 property rights including the statutory right to dissent under Section 30-1. Jones, 243 N.C. at 262, 90 S.E. 2d at 549.\nTherefore, the mere fact of the Tuccis\u2019 reconciliation did not impliedly rescind that settlement: Since rescission by conduct only arises from conduct which is \u201cpositively\u201d and \u201cunequivocally\u201d inconsistent with the contract, Mr. Tucci\u2019s contention that his reconciliation with Mrs. Tucci rescinded his release is necessarily founded on the premise that the parties\u2019 continuing to live separate and apart was part of the consideration for, or was an implied condition of, Mr. Tucci\u2019s release of his statutory right to dissent. See Small, 93 N.C. App. at ---, 379 S.E. 2d at 279 (reconciliation would rescind property settlement only if settlement depended on parties living separate and apart). However, the Tuccis\u2019 Agreement clearly states the parties\u2019 continued separation was not a condition to the property settlement provisions of the Agreement. On the contrary, Paragraph 12 of the Agreement stated that \u201cshould at any time in the future the parties resume marital cohabitation in any respect . . . the provisions of this Separation Agreement and Property Settlement are and shall remain valid and fully enforceable and of full legal force and effect.\u201d\nIn Small, we held the parties\u2019 continuation or resumption of their marital relationship did not rescind a release of the right to equitable distribution where the defendant offered no other proof that the parties\u2019 separation was consideration for the settlement of all property rights including the right to equitable distribution. 93 N.C. App. at ---, 379 S.E. 2d at 280. Likewise, we will not presume \u2014 contrary to the express language of the Agreement and in the absence of any other evidence in the record \u2014 that Mr. Tucci\u2019s release of his statutory right to dissent was contingent on the parties\u2019 continued separation. As there is no other evidence of rescission in the record, it is immaterial whether Mr. Tucci\u2019s release was executory at the time the Tuccis reconciled. Thus, we conclude the Tuccis\u2019 reconciliation did not imply a rescission of Mr. Tucci\u2019s release of his statutory right to dissent under these circumstances.\nIn addition to complying with ordinary contract principles, marital agreements must always comply with public policy. Cf. N.C.G.S. Sec. 5240(a) (1984). We note Mr. Tucci has not attempted to show his release was vitiated by any fraud, unconscionability, duress or overreaching. Cf. Knight v. Knight, 76 N.C. App. 395, 398, 333 S.E. 2d 331, 333 (1985); see also Harton v. Harton, 81 N.C. App. 295, 297, 344 S.E. 2d 117, 119 (1986) (spouses are fiduciaries until they separate, retain counsel and negotiate as adversaries). Furthermore, Mr. Tucci\u2019s release, as well as the contractual provision that the property settlement would continue despite the parties\u2019 reconciliation, are consistent with public policy as required of all marital agreements under Section 5240(a). It is true our Supreme Court has stated as public policy that married parties may not shirk their spousal duties of support and alimony and yet live together as a married couple. E.g., Motley v. Motley, 255 N.C. 190, 193, 120 S.E. 2d 422, 424 (1961) (Section 5240(a) would not validate antenuptial waiver of support); see also Gray v. Snyder, 704 F. 2d 709, 712 (4th Cir. 1983) (under North Carolina law, spouses must separate or intend to separate immediately to execute valid support waiver under Section 52-10.1). However, that policy is not offended by permitting the same spouses to execute a complete settlement of all spousal interests in each other\u2019s real and personal property and yet live together. E.g., Jones, 243 N.C. at 262, 90 S.E. 2d at 550 (reconciliation does not \u201cabrogate\u201d division of property); Buffington v. Buffington, 69 N.C. App. 483, 488, 317 S.E. 2d 97, 100 (1984) (\u201cpublic policy . . . permits spouses to execute property settlement at any time, regardless of whether they separate immediately thereafter or not\u201d); Love v. Mewborn, 79 N.C. App. 465, 339 S.E. 2d 487, disc. rev. denied, 317 N.C. 704, 347 S.E. 2d 43 (1986) (upholding cash payments as part of property settlement even though obligation executory when parties resumed sexual relations); but cf. Carlton v. Carlton, 74 N.C. App. 691, 693, 329 S.E. 2d 682, 684 (1985) (release of equitable distribution executed after separation held void after reconciliation).\nIt appears public policy under Motley would not have permitted these parties to enforce the \u201cseparation\u201d provisions of their Agreement, i.e., their waivers of support and alimony, and yet live together as a married couple; however, no public policy is offended by the continued validity of the property settlement provisions of this Agreement. Indeed, in light of Paragraph 12 of the Agreement, it appears the execution of the Agreement was intended to encourage the parties to reconcile and improve their marriage. Of course, a contractual provision providing that the contract will continue despite the parties\u2019 reconciliation is itself as subject to rescission as any other contractual provision. \u201c[T]he parties to separation agreements must still be able to cancel their agreements, and the indicia of the intent to cancel as developed in our common law . . . must also still be intact.\u201d Carlton, 74 N.C. App. at 694, 329 S.E. 2d at 685. However, in light of the common law indicia of implied rescission, we hold the mere fact the Tuccis reconciled is not inconsistent with the property settlement provisions of this Agreement under these circumstances and therefore did not impliedly rescind Mr. Tucci\u2019s release of his right to dissent.\nIn passing, we note Mr. Tucci\u2019s reliance on our decision in Carlton which held the parties\u2019 previous release of their right to equitable distribution became void when they resumed marital relations after a period of separation. Carlton distinguished itself from the apparently contrary result in Buffington by stating Buffington only dealt with common law principles affecting the validity of separation agreements entered into while the parties were still living together. After Carlton, this court again considered the case where spouses resumed marital relations after a period of separation and held that \u201cproperty settlements may be executed before, during or after marriage and are not necessarily terminated by reconciliation.\u201d Love, 79 N.C. App. at 466, 339 S.E. 2d at 488. Both the majority and dissenters in Higgins expressly approved the results in both Buffington and Love. Compare Higgins, 321 N.C. at 485, 364 S.E. 2d at 428 (majority approvingly stated holding was consistent with Buffington and Love) with id. at 491, 364 S.E. 2d at 432 (Whichard, J., dissenting) (approving holdings in Buff-ington and Love). The Higgins Court did not hold that agreement was \u201cvoid,\u201d but held the contractual provision to transfer property was defeated by the parties\u2019 reconciliation because the provision expressly conditioned the transfer on the parties \u201cliving continuously separate and apart\u201d for one year. Id. at 485, 364 S.E. 2d at 429. The Higgins Court divided over the meaning of the phrase \u201cliving continuously separate and apart,\u201d not over the validity of the agreement. Insofar as the result in Carlton may be inconsistent with Buffington and Love, it has apparently been superseded by the decision of our Supreme Court in Higgins.\nAccordingly, we hold the trial court incorrectly affirmed the clerk\u2019s conclusion that the Tuccis\u2019 reconciliation rescinded Mr. Tucci\u2019s release of his statutory right to dissent. As the Agreement was executed in accord with Section 52-10(a), the Agreement constitutes a plea in bar to Mr. Tucci\u2019s notice of dissent under Section 30-1. We therefore reverse the trial court and remand with the instruction that Mr. Tucci\u2019s notice of dissent be dismissed.\nReversed and remanded.\nJudge COZORT concurs.\nJudge Eagles dissents.", "type": "majority", "author": "GREENE, Judge." }, { "text": "Judge EAGLES\ndissenting.\nI respectfully dissent.\nThe majority opinion calls the agreement a \u201cseparation/property settlement agreement\u201d and concludes that the Tuccis\u2019 post execution marital reconciliation did not rescind their separation agreement. I disagree and would affirm.\nThe agreement here is clearly a separation agreement. The document is titled \u201cSeparation Agreement.\u201d From the terms of the agreement and the circumstances of its execution, it is clear that Mr. and Mrs. Tucci intended to create a separation agreement. Paragraph I of the agreement itself states: \u201cThat the parties shall continue to live separate and apart, each, being free from interference, authority or control by the other as full as if he or she were unmarried. . . .\u201d [Emphasis added.] The clerk of court found as a fact that the parties both separated and executed the separation agreement \u201con or about\u201d November 18, 1983. Of greater significance here we note that the appellants did not except to the clerk\u2019s findings of fact that the document was a separation agreement and that the agreement was executed by the separating spouses \u201con or about November 18,\u201d the date found to be the approximate date of separation.\nSince the agreement was a separation agreement, there are well established principles concerning the consequences of reconciliation which apply here. \u201cIt is well settled in our law that a separation agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption [reconciliation] of the marital relation.\u201d In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E. 2d 541, 545 (1976). \u201cFurther, a subsequent separation will not revive the agreement.\u201d Id. at 393, 230 S.E. 2d at 546.\nHere, the clerk of superior court\u2019s findings of fact clearly indicate that only 37 days after the date of separation and when the agreement was signed, the couple reconciled, re-established a matrimonial home, and for over 20 months held themselves out as man and wife \u201cin the ordinary acceptation of the descriptive phrase.\u201d Accordingly, I would hold that the agreement was \u201cterminated for every purpose insofar as it remains executory\u201d upon their resumption of the marital relationship. Carlton v. Carlton, 74 N.C. App. 690, 692, 329 S.E. 2d 682, 684 (1985).\n\u201cThe executory provisions of a separation agreement are those in which \u2018a party binds himself to do or not to do a particular thing in the future'. . . . \u2018Executed\u2019 provisions are those which have been carried out, and which require no future performance.\u201d Id. at 693, 329 S.E. 2d at 684 [citations omitted].\nHere, paragraph XIV of the agreement provides: \u201ceach party, nevertheless, agrees in order to fully effectuate this intention to execute in the future such additional claims, releases or other acquittances as may be necessary or appropriate for this purpose.\u201d This language contemplates loss of the right to dissent, recognizes that it is executory, and may require further action as events occur giving rise to new rights. Here the agreement is void as to the executory portions because of the resumption of the marital relationship and the right to dissent is clearly contemplated by the agreement itself as an executory provision.\nAdditionally, the public policy of our State should encourage continuation of viable marital relationships and should favor reconciliation of temporarily separated spouses. Resumption of the marital relationship and its attendant legal consequences should be possible without the necessity for any formal revocation of earlier separation agreements or formal reexecution of marriage vows or other artificial complexities.\nIn the Carlton opinion, though speaking on a different issue (the effect of enactment of G.S. 50-20(d) on equitable distribution actions), our court summed up my views:\nWe do not believe that. . . the General Assembly intended that a written separation agreement, once entered into, would be forever binding. . . . Rather, the parties to separation agreements must still be able to cancel their agreements, and the indicia of the intent to cancel as developed in our common law, [I] believe, must also still be intact.\nId. at 694, 329 S.E. 2d at 685.\nFor these reasons, I dissent and would vote to affirm.", "type": "dissent", "author": "Judge EAGLES" } ], "attorneys": [ "Womble Carlyle Sandridge & Rice, by Michael E. Ray, Kurt C. Stakeman and Lori P. Hinnant, for appellant-estate.", "Harrison, Benson, Fish, North, Cooke & Landreth, by Michael C. Landreth and A. Wayland Cooke, for appellee-dissenter." ], "corrections": "", "head_matter": "IN THE MATTER OF THE ESTATE OF SHIRLEY ALLRED TUCCI\nNo. 8821SC793\n(Filed 5 July 1989)\nHusband and Wife \u00a7 12\u2014 separation agreement \u2014subsequent reconciliation and death of spouse \u2014right to dissent from will\nThe trial court incorrectly affirmed the Clerk of Court\u2019s conclusion that a reconciliation rescinded a release of the statutory right to dissent from a will where the Tuccis executed a separation/property settlement agreement on 18 November 1983 which stated that they had separated on 15 October 1983; they reconciled in December 1983, lived together until some time in September 1985, and entered into a consent judgment for divorce from bed and board in December 1985 which was later set aside; Mrs. Tucci died in March 1986; Mr. Tucci filed his notice of dissent after her will was probated; the Clerk of Superior Court concluded that the separation agreement had been rescinded by the reconciliation; and the Superior Court affirmed the Clerk\u2019s order. The agreement was by its own terms a combined separation agreement and property settlement and clearly stated that the parties\u2019 continued separation was not a condition to the property settlement provisions of the agreement. The mere fact that the Tuccis reconciled is not inconsistent with the property settlement provisions of this agreement under these circumstances and therefore did not impliedly rescind Mr. Tucci\u2019s release of his right to dissent. N.C.G.S. \u00a7 30-1.\nJudge EAGLES dissenting.\nAPPEAL by Estate of Shirley Allred Tucci from Rousseau (Julius A.), Judge. Order entered 2 May 1988 in Superior Court, FORSYTH County. Heard in the Court of Appeals 17 February 1989.\nWomble Carlyle Sandridge & Rice, by Michael E. Ray, Kurt C. Stakeman and Lori P. Hinnant, for appellant-estate.\nHarrison, Benson, Fish, North, Cooke & Landreth, by Michael C. Landreth and A. Wayland Cooke, for appellee-dissenter." }, "file_name": "0428-01", "first_page_order": 458, "last_page_order": 471 }