{ "id": 8563261, "name": "WENDELL HOLMES MURPHY, SR. v. EMILY WYNELLE MURPHY", "name_abbreviation": "Murphy v. Murphy", "decision_date": "1978-07-14", "docket_number": "No. 37", "first_page": "390", "last_page": "399", "citations": [ { "type": "official", "cite": "295 N.C. 390" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "239 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": -1 }, { "cite": "34 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551449 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc-app/34/0677-01" ] }, { "cite": "73 S.E. 164", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "158 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655080 ], "year": 1911, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/158/0251-01" ] }, { "cite": "112 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "251 N.C. 797", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627559 ], "year": 1960, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0797-01" ] }, { "cite": "206 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "195" } ], "opinion_index": 0 }, { "cite": "285 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565424 ], "year": 1974, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0561-01" ] }, { "cite": "186 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "67 Okla. 147", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8892498 ], "weight": 2, "year": 1917, "opinion_index": 0, "case_paths": [ "/okla/67/0147-01" ] }, { "cite": "34 A. 2d 150", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1943, "opinion_index": 0 }, { "cite": "134 N.J. Eq. 8", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 933451 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nj-eq/134/0008-01" ] }, { "cite": "143 Fla. 686", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1941605 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/fla/143/0686-01" ] }, { "cite": "34 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "157" } ], "opinion_index": 0 }, { "cite": "225 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607057 ], "year": 1945, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0340-01" ] }, { "cite": "166 S.E. 754", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 5, "year": 1975, "pin_cites": [ { "page": "755" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "203 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616993 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/203/0641-01" ] }, { "cite": "35 A.L.R. 2d 707", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1954, "opinion_index": 0 }, { "cite": "40 A.L.R. 1227", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1926, "opinion_index": 0 }, { "cite": "214 S.E. 2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555134 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0527-01" ] }, { "cite": "237 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 124", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547381 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0124-01" ] }, { "cite": "230 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "291 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558339 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0386-01" ] } ], "analysis": { "cardinality": 931, "char_count": 21385, "ocr_confidence": 0.832, "pagerank": { "raw": 3.759839390725335e-07, "percentile": 0.8956230652829567 }, "sha256": "208bacd7c616276956d611d64d0fe26312b3d026e688340d16b7104c879b7e1d", "simhash": "1:006e102fb11f29c2", "word_count": 3576 }, "last_updated": "2023-07-14T14:50:00.775554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WENDELL HOLMES MURPHY, SR. v. EMILY WYNELLE MURPHY" ], "opinions": [ { "text": "SHARP, Chief Justice.\nDefendant\u2019s evidence on the first issue, which the trial judge deemed sufficient to go to the jury on the question whether the separation agreement was obtained by plaintiff\u2019s fraud or undue influence, is sufficiently set out and discussed in the opinion of the Court of Appeals. We affirm that Court\u2019s decision that the judge committed no prejudicial error in his rulings and instructions on the first issue and that the evidence supports the jury\u2019s verdict on that issue. However, defendant\u2019s assignment of error No. 10, which challenges the judge\u2019s instruction on the second issue, must be sustained for the reasons hereinafter set out.\nDefendant\u2019s testimony with reference to the relationship between plaintiff and herself after the execution of their separation agreement is summarized and quoted below:\nAfter March 1972 defendant lived in a trailer in Chinquapin and plaintiff lived in a trailer behind the office of Murphy Mills Company. \u201cWithin the immediate year after the separation agreement,\u201d plaintiff called her \u201cmany times\u201d asking her to come to his trailer, which she did. On most of those occasions they discussed \u201cgetting back together.\u201d Defendant testified, \u201cOn some of those occasions he did ask me to go to bed with him. ... I went to bed with him at the trailer after the separation agreement and had intercourse with him numerous times. I don\u2019t really know (how many times).\u201d Plaintiff also went to defendant\u2019s trailer \u201c a couple of times after the separation agreement.\u201d On those occasions they talked about getting back together and she had \u201csexual relations with him.\u201d Several times she stayed with him at his trailer \u201cpractically all night and left early in the morning.\u201d During all those times they were still talking about getting back together.\nDefendant further testified that after March 1972 she and plaintiff engaged in sexual intercourse at places other than their respective trailers. They \u201chad sex\u201d at their \u201cplace at the beach,\u201d and defendant once came to Kenansville while she was there working at the Farm Bureau office.\nUnder the terms of the separation agreement the parties\u2019 children spent alternate weekends together with first one parent and then the other. Defendant said that it was on some of those occasions when they \u201cwould alternate the children\u201d that they had sexual relations. However, she also testified, \u201cWe engaged in sexual intercourse on other occasions when not transporting the children from home to home. I didn\u2019t count the number of times I engaged in intercourse with him altogether from the execution of the deed of separation. I would not even venture a guess, numerous times. I am sure more than a dozen times. Certainly at least two dozen, probably more.\u201d\nDefendant began attending Campbell College at Buies Creek in January of 1973 and remained there for a year and a half. During that time plaintiff visited her in her trailer where they had sex on more than one occasion. Defendant testified that the last time they had intercourse was at Buies Creek in the spring of 1973. On that occasion they \u201cdiscussed getting back together.\u201d She testified, however, \u201cHe told me that he loved me, that he always would, but there was no way to go back. He told me that on other occasions prior to then.\u201d\nIn his testimony plaintiff readily admitted that after the execution of the separation agreement he had engaged in sexual intercourse with his wife. When asked to what extent, he replied, \u201cSeveral instances, not nearly as numerous as she suggested, but there were instances.\u201d He estimated \u201csix or eight times,\u201d and said: \u201cIt was always when I carried on an exchange of the children. ... I did not ever agree with her we would resume the marital relation. I always told her there was no way under the circumstances we could resume our relationship. I did not ever move any of my clothes into her house. She did not ever move any of her clothes or belongings into my house.\u201d\nPlaintiff testified on cross-examination that he left his wife in January of 1972 on the day her car remained parked from early morning until 9:00 p.m. in the yard of one Milton Parker. This one issue, he said, \u201cis what our marital differences had been about over this whole period of time [the six-eight months before the separation]. . . .\u201d When asked about his continued sexual relations with his wife after the execution of the separation agreement and when he knew \u201cthere was no way under the circumstances\u201d that they could ever resume the marital relationship, plaintiff offered this explanation: \u201cWynelle and I had lived together nearly 14 years as husband and wife.\u201d\nIn response to questions about his visits to defendant at Buies Creek, plaintiff did not specifically recall going to defendant\u2019s trailer in April of 1973. However, he did say, \u201cI went many times. I very well could have. I said I did (engage in sexual intercourse) as many as a half dozen times, as many as eight at her trailer at Buies Creek or at the trailer behind the office, the mill. We did have sexual intercourse six or eight times.\u201d\nThe second issue submitted to the jury posed the question whether the subsequent acts and conduct of the parties terminated their separation agreement of 4 March 1972.\nIt is established law that a separation agreement between husband and wife is terminated, insofar as it remains executory, upon their resumption of the marital relation. In re Adamee, 291 N.C. 386, 230 S.E. 2d 541 (1976). In Adamee, supra, we hold that when separated spouses have executed a separation agreement and thereafter resume living together in the same fashion as before their separation, in contemplation of law their action amounts to a resumption of marital cohabitation which rescinds their separation agreement. This is true irrespective of whether they had resumed sexual relations. Id. at 393, 230 S.E. 2d at 546.\nThe question now before us is whether a husband and wife who, after having executed a separation agreement and established separate abodes, continue to engage in sexual intercourse from time to time thereby rescind the agreement. Defendant\u2019s assignment of error No. 10 challenges the following instructions which the judge gave the jury on the second issue with reference to this specific question:\n\u201cNow in this connection I charge you that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew the marital relations, the agreement is terminated for every purpose insofar as it remains executory. And the words \u201cbecome reconciled and renew their marital relations\u2019 means not just a mere reconciliation or making up of the parties, but it means renewal and resumption of the marital relations, and this would require something more than sexual intercourse alone. It\u2019s essential that there be a mutual intent to resume cohabitation. The word cohabitation in our law means something more than sexual intercourse between the parties. Cohabitation ordinarily contemplates establishment of a home in which the parties live in the married relationship, normal relationship of husband and wife.\u201d (Emphasis added.)\nAnd finally the trial judge charged, \u201cNow here, the burden of proof is also on Mrs. Murphy to show you by the greater weight of the evidence that not only did they have sex together after the separation agreement, but that there was a mutual intent on the part of both to reconcile and resume their cohabitation.\u201d\nThe foregoing instructions find support in two prior decisions of the Court of Appeals, Cooke v. Cooke, 34 N.C. App. 124, 237 S.E. 2d 323 (1977), and Newton v. Williams, 25 N.C. App. 527, 214 S.E. 2d 285 (1975). In both these decisions the court held that mere proof of \u201cisolated\u201d or \u201cmere casual acts of sexual intercourse\u201d did not establish reconciliation and the resumption of marital relations. In reaching this conclusion the Court of Appeals relied upon the following statement in 1 R. Lee, North Carolina Family Law \u00a7 35, at 153 (3d ed. 1963): \u201cMere proof that isolated acts of sexual intercourse have taken place between the parties is not conclusive evidence of a reconciliation and resumption of cohabitation. There must ordinarily appear that the parties have established a home and that they are living in it in the normal relationship of husband and wife.\u201d See also 2 R. Lee, North Carolina Family Law \u00a7 200 (3d ed. 1963).\nThat the foregoing statement is the general rule may be inferred from the decisions collected in the following annotations and the supplemental case services: Annot., 40 A.L.R. 1227 (1926); Annot., 35 A.L.R. 2d 707 (1954). However, this rule \u2014 be it \u201cgeneral\u201d or limited \u2014 is not the law in North Carolina. The rule in this State was clearly enunciated by Justice Brogden, speaking for the Court in 1932 in the case of State v. Gossett, 203 N.C. 641, 166 S.E. 754. This case is cited in 42 C.J.S., Husband and Wife \u00a7 601, at 186 (1975), as authority contrary to the general rule that \u201cmere casual acts of sexual intercourse are not conclusive evidence that the parties have ceased to live separate within the meaning of a separation agreement.\u201d In Gossett, the defendant was indicted for the abandonment and nonsupport of his wife. At the trial the defendant contended that by executing a separation agreement his wife had released him from any obligation to support her. The wife testified, however, that after the separation agreement was signed her husband had visited her and they had engaged in sexual intercourse on each occasion. The number of times the defendant visited his wife is not disclosed in the opinion.\nIn pertinent part, Judge Thomas J. Shaw, the trial judge in State v. Gossett, supra, instructed the jury as follows: \u201cWhen a husband and wife enter into a deed of separation the policy of the law is that they are to live separate, that they are not to keep up the sexual relation and continue that, but that they are to live separate and apart and if after the deed of separation is entered into a man goes to see his wife and child, and every time he goes to see her he has sexual intercourse with her, the deed of separation is of no validity at all . . . and the court instructs you, if you find that this man visited his wife and child after this deed of separation was entered into and before this indictment or warrant was taken out . . . and that every time he came to see her they had sexual intercourse, then the court instructs you to disregard entirely the evidence about the deed of separation because, if that would be true, the parties themselves would disregard it and cannot expect the court to regard it if they did not regard it, and . . . the rights of husband and wife and the duties and obligations would be reimposed upon the parties.\u201d Id. at 643-44, 166 S.E. at 755.\nOn appeal, defendant Gossett assigned the foregoing instruction as error. He contended that Judge Shaw had stated the law \u201ctoo broadly,\u201d for it had never been held that the mere resumption of sexual relations invalidated a deed of separation.\nJustice Brogden began the Court\u2019s opinion, which rejected the defendant\u2019s contentions, with the following question: \u201cIf a separation agreement is duly executed by husband and wife, and thereafter the husband visits the wife from time to time, and upon each visit resumes the conjugal relationship, does such conduct invalidate the agreement?\u201d Before answering this question in the affirmative Justice Brogden wrote:\n\u201cThere is ample support in the books justifying the defendant\u2019s exception, but this Court is constrained to uphold the view of the law so expressed by the trial judge; otherwise, the separation agreement would degenerate into a mere cloak or device by means of which the husband would escape the responsibilities imposed by the marital status and yet be free to partake of such privileges as he chose to enjoy. Manifestly it is not to be assumed that the law would protect the integrity of the agreement and yet thereby sanction and approve, for all practical purposes, illicit intercourse and promiscuous assignation.\n\u201cThe separation agreement constituted the sole defense to the crime charged in the warrant, and it necessarily follows that after the agreement has been treated by the parties as a \u2018mere scrap of paper\u2019 and set at naught by their conduct, then it no longer avails.\u201d Id. at 644, 166 S.E. at 755. Cf. 24 Am. Jur. 2d Divorce & Separation \u00a7 214 (1966) (one act of sexual intercourse between a husband and wife may constitute a condonation by the innocent spouse of the other\u2019s infidelity).\nAlbeit forty-six years have intervened since the decision in Gossett, this Court is still constrained to hold that sexual intercourse between a husband and wife after the execution of a separation agreement avoids the contract. We therefore reaffirm State v. Gossett, supra, and apply its rationale to this case. It is quite true, as plaintiff points out in his brief, that marriage involves many duties, responsibilities and activities other than sexual relations. See Young v. Young, 225 N.C. 340, 344, 34 S.E. 2d 154, 157 (1945). However, in the normal situation they are an integral part of marriage. Indeed, severance of marital relations by a separation agreement and continued sexual intercourse between the parties \u201care essentially antagonistic and irreconcilable notions.\u201d 1 A. Lindey, Separation Agreements and Ante-nuptial Contracts \u00a7\u00a7 8-13 (1977). In our view, this is true whether the resumption of sexual relations be \u201ccasual\u201d, \u201cisolated\u201d, or otherwise. See Weeks v. Weeks, 143 Fla. 686, 197 So. 393 (1940); Wolff v. Wolff, 134 N.J. Eq. 8, 34 A. 2d 150 (1943); Ahrens v. Ahrens, 67 Okla. 147, 169 P. 486 (1917). Plaintiff\u2019s assignment of error No. 10 is sustained.\nThe foregoing ruling, of course, requires that the judgment in this case be vacated and the cause remanded for a new trial on the second issue prior to the trial of plaintiff\u2019s action for divorce and defendant\u2019s cross-action for alimony and child custody. Presumably, however, in view of the admissions made by plaintiff husband in the course of his testimony at the trial, defendant wife will now move for summary judgment under G.S. 1A-1, Rule 56(c). Under this rule \u201cany material that is on file that may properly be treated as an admission of a party may be considered on a motion for summary judgment.\u201d 6 Moore\u2019s Federal Practice, Summary Judgment \u00a7 56.11 [1.5], at 56-201 (1976). See Ramsouer v. Midland Valley R. Co., 135 Fed. 2d 101 (8th Cir. 1943) (where a transcript of testimony taken at an earlier trial in an action dismissed without prejudice was used in support of a motion for summary judgment); Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972); C. Wright and A. Miller, Federal Practice and Procedure \u00a7 2723 (1973).\nThere remains to be considered only the questions raised by defendant\u2019s assignment of error No. 2 \u2014 whether the trial court erred in denying her motion to amend her amended answer by the addition of proposed paragraphs 12, 18, 19, and 22. These paragraphs (with the exception of No. 12, which would appear to be mainly evidentiary) contain the allegations constituting defendant\u2019s defense to plaintiff\u2019s claim for divorce and the substance of her claim for alimony without divorce. The Court of Appeals held that, in view of the severance of issues, the denial of this motion to amend \u201cwas not error because the matters alleged (no income, indignities to the person, and failure to provide subsistence) were not material to the single issue [then] before the court, the validity of the separation agreement.\u201d However, in view of the present posture of the case, defendant contends that the proposed amendments are now pertinent, and that her motion to amend should be considered de novo by the trial court. We agree with that contention and direct that, prior to the trial of plaintiff\u2019s action for divorce and defendant\u2019s cross-action for alimony without divorce, the trial judge shall reconsider defendant\u2019s motion to amend her pleadings as provided by Rule 15(a).\nIn summary, for the reasons previously stated, the decision of the Court of Appeals finding no error in the trial below on the first issue is affirmed; its decision finding no error as to the second issue is reversed, and a new trial is ordered as to that issue only. Robertson v. Stanley, 285 N.C. 561, 568, 206 S.E. 2d 190, 195 (1974); Johnson v. Lewis, 251 N.C. 797, 804, 112 S.E. 2d 512, 517 (1960); Lumber Co. v. Branch, 158 N.C. 251, 253, 73 S.E. 164, 165 (1911). Accordingly, this case is returned to the Court of Appeals for remand to the District Court for proceedings consistent with this opinion.\nAffirmed in part; Reversed in part.\nError and Remanded.\nJustice EXUM concurring in part and dissenting in part:\n. I agree with the decision of the Court of Appeals and with the law in this area as it has been developed by that Court. See Cooke v. Cooke, 34 N.C. App. 124, 237 S.E. 2d 323 (1977); Newton v. Williams, 25 N.C. App. 527, 214 S.E. 2d 285 (1975). Therefore I vote to affirm. I disagree with the majority\u2019s conclusion that the trial judge\u2019s instructions on the second issue were erroneous. Insofar as State v. Gossett, 203 N.C. 641, 166 S.E. 754 (1932), relied on by the majority, is inconsistent with these conclusions I would consider it no longer controlling.\n. In a footnote to this statement (n. 105 at 153), the author says: \u201cBut cf. State v. Gossett, 203 N.C. 641, 166 S.E. 754 (1932), which was a criminal case involving a prosecution for abandonment and nonsupport and the effect of a separation agreement upon the same; the language in this case would seem to be applicable only to the facts of the particular case.\"\n. See 1 R. Lee, North Carolina Family Law \u00a7 87, at 332 (3d ed. 1963).", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Vance B. Gavin, Russell J. Lanier, Jr., and William E. Craft, for plaintiff appellee.", "Kornegay & Rice for defendant appellant." ], "corrections": "", "head_matter": "WENDELL HOLMES MURPHY, SR. v. EMILY WYNELLE MURPHY\nNo. 37\n(Filed 14 July 1978)\nHusband and Wife \u00a7 12\u2014 separation agreement \u2014 resumption of sexual relations \u2014 agreement rescinded\nSexual intercourse between a husband and wife after the execution of a separation agreement avoids the contract, and this is true whether the resumption of sexual relations be \u201ccasual,\u201d \u201cisolated,\u201d or otherwise.\nJustice Exum concurring in part and dissenting in part.\nDEFENDANT appeals from the decision of the Court of Appeals finding \u201cno error\u201d in the judgment of Crumpler, J., entered 17 June 1976 in the District Court of Duplin County. The opinion of Clark, J., with Brock, J., concurring and Martin, J., dissenting, is reported in 34 N.C. App. 677, 239 S.E. 2d 597 (1977).\nOn 8 August 1973 plaintiff, Wendell Holmes Murphy, Sr., instituted this action for divorce, based on one year\u2019s separation, against his wife, defendant Emily Wynelle Murphy. The complaint, in brief summary, alleged:\nThe parties were married on 23 May 1958 and lived together until 1 March 1972. Since that date plaintiff and defendant have lived continuously separate and apart, at no time having resumed the marital relation which formerly existed between them. To the marriage of plaintiff and defendant were born two children, Wendell Holmes Murphy, Jr., born 23 April 1964, and Wendy Deanne Murphy, born 20 December 1968. The parties settled the custody and support of these children by deed of separation executed on 4 March 1972.\nIn her amended answer and counterclaim defendant admitted that the parties separated on 1 March 1972 and executed a deed of separation on 4 March 1972. However, she also alleged that, after June of 1972 and continuing through April or May of 1973, plaintiff and defendant \u201cresumed their marital relationship\u201d by having intercourse with one another and that they thereby rescinded the deed of separation. In addition, defendant alleged that the deed of separation should be set aside because, at the time of its execution, plaintiff had not properly informed her of his assets. Defendant further averred that she is the dependent spouse, unemployed, and with no income whatsoever; that plaintiff has willfully failed to provide her with necessary subsistence and, by his conduct, has offered such indignities to her person as to render her condition intolerable and her life burdensome.\nDefendant prayed that plaintiff\u2019s claim for relief be denied; that the deed of separation between the parties be declared void; that she be awarded custody of the children of the marriage; and that she be granted alimony and child support.\nAt the beginning of the trial, pursuant to N.C.G.S. 1A-1, Rule 42(b) (1969), Judge Crumpler allowed plaintiff\u2019s motion to sever plaintiff\u2019s action for divorce from defendant\u2019s cross-action to set aside the deed of separation. In consequence, only two issues were submitted to the jury and they were answered as follows:\n\u201c1. Was the separation agreement and property settlement dated March 4, 1972, a valid separation agreement when executed? Answer: YES.\n\u201c2. If so, was the separation agreement and property settlement dated March 4, 1972, terminated by the acts and conduct of the plaintiff and defendant? Answer: No.\u201d\nFrom the judgment entered upon the verdict declaring the deed of separation to be \u201cin all respects a valid and existing separation agreement,\u201d defe\u00f1dant appealed to the Court of Appeals and from its decision to this Court as a matter of right under G.S. 7A-30(2).\nVance B. Gavin, Russell J. Lanier, Jr., and William E. Craft, for plaintiff appellee.\nKornegay & Rice for defendant appellant." }, "file_name": "0390-01", "first_page_order": 422, "last_page_order": 431 }