{ "id": 2568606, "name": "LARRY N. HIGGINS v. JOANNE W. HIGGINS; and JOANNE W. HIGGINS v. LARRY N. HIGGINS", "name_abbreviation": "Higgins v. Higgins", "decision_date": "1988-02-03", "docket_number": "No. 486A87", "first_page": "482", "last_page": "493", "citations": [ { "type": "official", "cite": "321 N.C. 482" } ], "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": "358 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": -1 }, { "cite": "86 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135992 ], "year": 1987, "opinion_index": -1, "case_paths": [ "/nc-app/86/0513-01" ] }, { "cite": "317 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526484 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0483-01" ] }, { "cite": "347 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772074, 4774829, 4780174, 4779446, 4777177 ], "year": 1986, "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", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521530 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0465-01" ] }, { "cite": "166 S.E. 754", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616993 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0641-01" ] }, { "cite": "245 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563261 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0390-01" ] }, { "cite": "245 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 1 }, { "cite": "295 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563261 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/295/0390-01" ] }, { "cite": "346 S.E. 2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 2 }, { "cite": "317 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779136, 4774088, 4777100, 4776849, 4774936 ], "year": 1986, "opinion_index": 2, "case_paths": [ "/nc/317/0336-05", "/nc/317/0336-02", "/nc/317/0336-03", "/nc/317/0336-04", "/nc/317/0336-01" ] }, { "cite": "341 S.E. 2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 2 }, { "cite": "80 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522516 ], "year": 1986, "opinion_index": 2, "case_paths": [ "/nc-app/80/0177-01" ] }, { "cite": "263 S.E. 2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "322" } ], "opinion_index": 2 }, { "cite": "45 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549174 ], "year": 1980, "pin_cites": [ { "page": "437" } ], "opinion_index": 2, "case_paths": [ "/nc-app/45/0432-01" ] }, { "cite": "219 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "217", "parenthetical": "emphasis added" } ], "opinion_index": 2 }, { "cite": "288 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569639 ], "year": 1975, "pin_cites": [ { "page": "452", "parenthetical": "emphasis added" } ], "opinion_index": 2, "case_paths": [ "/nc/288/0447-01" ] }, { "cite": "354 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 2 }, { "cite": "319 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4744038 ], "year": 1987, "opinion_index": 2, "case_paths": [ "/nc/319/0298-01" ] }, { "cite": "289 S.E. 2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 2 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "year": 1982, "opinion_index": 2, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "16 Wake Forest L. Rev. 117", "category": "journals:journal", "reporter": "Wake Forest L. Rev.", "year": 1980, "pin_cites": [ { "parenthetical": "\"[WJhile the isolated-acts test serves the goal of judicial efficiency, it undermines the goal of judicial integrity.\"" } ], "opinion_index": 3 }, { "cite": "65 N.C.L. Rev. 195", "category": "journals:journal", "reporter": "N.C. L. Rev.", "weight": 2, "opinion_index": 3 }, { "cite": "59 N.C.L. Rev. 819", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1981, "pin_cites": [ { "page": "841-43" } ], "opinion_index": 3 }, { "cite": "57 N.C.L. Rev. 827", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1979, "pin_cites": [ { "page": "1096" } ], "opinion_index": 3 }, { "cite": "346 S.E. 2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 3 }, { "cite": "317 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779136, 4774088, 4777100, 4776849, 4774936 ], "year": 1986, "opinion_index": 3, "case_paths": [ "/nc/317/0336-05", "/nc/317/0336-02", "/nc/317/0336-03", "/nc/317/0336-04", "/nc/317/0336-01" ] }, { "cite": "341 S.E. 2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 3 }, { "cite": "80 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522516 ], "year": 1986, "opinion_index": 3, "case_paths": [ "/nc-app/80/0177-01" ] }, { "cite": "317 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 3 }, { "cite": "69 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526484 ], "year": 1984, "opinion_index": 3, "case_paths": [ "/nc-app/69/0483-01" ] }, { "cite": "347 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 3 }, { "cite": "317 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772074, 4774829, 4780174, 4779446, 4777177 ], "year": 1986, "opinion_index": 3, "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", "year": 1986, "opinion_index": 3 }, { "cite": "79 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521530 ], "year": 1986, "opinion_index": 3, "case_paths": [ "/nc-app/79/0465-01" ] }, { "cite": "245 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "698" } ], "opinion_index": 3 }, { "cite": "295 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563261 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "397" } ], "opinion_index": 3, "case_paths": [ "/nc/295/0390-01" ] }, { "cite": "358 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "557" } ], "opinion_index": 3 }, { "cite": "86 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135992 ], "year": 1987, "pin_cites": [ { "page": "520" } ], "opinion_index": 3, "case_paths": [ "/nc-app/86/0513-01" ] } ], "analysis": { "cardinality": 923, "char_count": 26066, "ocr_confidence": 0.819, "pagerank": { "raw": 2.6959738211237974e-07, "percentile": 0.8280158418502391 }, "sha256": "eedb1e8ca95a5cff6bd164283b538389eefc2570903cc6d5bc079cc2faf1157d", "simhash": "1:aa75d07e5496bdd6", "word_count": 4402 }, "last_updated": "2023-07-14T17:04:28.747837+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice MARTIN joins in this concurring opinion.", "Justice WHICHARD joins in this dissenting opinion." ], "parties": [ "LARRY N. HIGGINS v. JOANNE W. HIGGINS and JOANNE W. HIGGINS v. LARRY N. HIGGINS" ], "opinions": [ { "text": "WEBB, Justice.\nThe resolution of this appeal depends on the interpretation of the words of the agreement \u201cif the parties have lived continuously separate and apart for that full period\u201d (one year). It is undisputed that the parties engaged in sexual intercourse during that period. If these words are not ambiguous and to live separate and apart means the parties may not engage in sexual intercourse during that period, summary judgment was properly granted for the appellee. We believe that we are required to hold under Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693 (1978) and State v. Gossett, 203 N.C. 641, 166 S.E. 754 (1932), that the words are not ambiguous and the parties did not live continuously separate and apart during the year after the agreement was signed. In Murphy, the plaintiff brought an action for divorce on the ground of one year\u2019s separation. A separation agreement had been signed by the parties and the defendant brought a cross action to set it aside. The cross action was tried first. We held it was error for the district court to charge the jury that it took more than sexual intercourse for the parties to resume the marital relationship. In Gossett, the defendant was prosecuted for nonsupport of his wife. He defended on the ground that he and his wife had signed a separation agreement which relieved him of the duty to support her. This Court found no error in a charge in which the jury was told that if they found the parties entered into an agreement in which they agreed to live separate and apart and the defendant visited his wife on several occasions and had intercourse with her, they should treat the separation agreement as if it were of no validity.\nMurphy and Gossett hold that sexual intercourse is all it takes to void an agreement in which the parties agree to live separate and apart. We believe these cases hold there is a precise meaning to \u201cliving separate and apart\u201d and a husband and wife do not live separate and apart if they have sexual relations. The words as used in the separation agreement in this case are not ambiguous. The contingency upon which the husband was to receive the wife\u2019s interest in the marital residence did not occur. The wife was entitled to summary judgment in her favor.\nThe appellant contends and the dissents in the Court of Appeals and this Court say that this is an agreement drawn pursuant to N.C.G.S. \u00a7 50-20(d) which allows an agreement dividing property during the marriage. For that reason, says the appellant, the agreement in this case is enforceable although the parties had sexual relations within one year of the signing of the agreement. The appellant relies on 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) and Buffington v. Buffington, 69 N.C. App. 483, 317 S.E. 2d 97 (1984). We believe our decision in this case is consistent with N.C.G.S. \u00a7 50-20(d) as well as Love and Buffington. N.C.G.S. \u00a7 50-20(d) provides that married persons may provide for division of marital property while they are cohabiting. Love and Buffing-ton hold that such agreements are enforceable under the statute. We do not hold in this case that such an agreement is unenforceable. The terms of the agreement in this case provide that for the defendant to receive the marital home the parties must live separate and apart for one year after the parties separate. They did not do this and under the terms of the agreement the appellant is not entitled to have the house conveyed to him. We do not hold that Murphy governs and the separation agreement is void. We do hold that at the time the agreement was executed Murphy and Gossett had defined \u201cto live separate and apart\u201d in such a way that the words meant that a husband and wife could not have intercourse if they were to live separate and apart. We hold the separation agreement should be enforced according to the meaning of these words.\nThe dissents would apply a subjective test to determine the intent of the parties at the time the separation agreement was made. See 1 E. Farnsworth, Contracts \u00a7 7.9 (1982) for a discussion of the objective and subjective theories of assent. The dissents would have us attempt to search for the meaning the parties gave to the words regardless of the understanding which is normally-given to them. In this case we believe we should use an objective test. The words \u201clive continuously separate and apart\u201d have a definite meaning. Larry Higgins\u2019 attorney could have told him the meaning of the words at the time the agreement was signed. A party to a contract should not be allowed to say he gave a different meaning to words which are not ambiguous.\nWe are advertent to N.C.G.S. \u00a7 52-10.2 which overrules Murphy and Love. The effective date of that statute is 1 October 1987. We did not consider it in the resolution of this case.\nThe decision of the Court of Appeals is\nAffirmed.", "type": "majority", "author": "WEBB, Justice." }, { "text": "Justice FRYE\nconcurring in result.\nThis is a simple case. The parties to this lawsuit, husband and wife, entered into a separation agreement which provided, inter alia, that their residence should remain titled in their names for a period of one year from the date of the agreement and further provided \u201cthat if the parties have lived continuously separate and apart for that full period\u201d the wife would transfer her interest in the residence to her husband as part of the property settlement. This agreement was executed on 13 December 1983. During the one year following execution of the agreement, the parties traveled to Tennessee and Florida, sharing a motel room for up to four days. In each of these instances, the parties engaged in one or more acts of sexual intercourse. They spent at least two nights together in the former marital residence, two other nights together away from the residence, and engaged in several acts of sexual intercourse on other occasions. The husband now seeks enforcement of that portion of the separation agreement requiring the wife to transfer her interest in the property to him. In order to do so, he must establish that they \u201chave lived continuously separate and apart for that full period\u201d of one year. The district court granted the wife\u2019s motion for summary judgment and the Court of Appeals affirmed.\nThe question before the trial court, the Court of Appeals and this Court is whether, admitting the facts as stated above, the husband can prove that he and his former spouse \u201clived continuously separate and apart for that full period\u201d as that language was used in their separation agreement.\nSince this Court\u2019s famous (or infamous) decision in Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693 (1978), every divorce lawyer worth his salt has known that the resumption of even casual sexual relations between husband and wife during the period of separation meant that the parties were not living \u201ccontinuously separate and apart\u201d as that term is used in separation agreements. This language had a clear and unambiguous meaning in North Carolina at the time this agreement was executed and therefore it is unnecessary to have testimony of the parties as to what each of them intended when this language was used.\nThe dissent makes much of the fact that leading commentators have criticized the rule of Murphy and that the rule of Murphy has now been effectively overruled by recent action of the General Assembly. Such reliance is misplaced, however, since the meaning of the language in 1983 was clear, irrespective of whether the commentators liked it or not. Likewise, the fact that the separation agreement was executed after the enactment of the marital property act is also not controlling. The fact that a separation agreement may be entered into before, during or after the dissolution of a marriage does not prevent the parties from agreeing that certain property will be transferred only if the parties live \u201ccontinuously separate and apart\u201d for the stated period of time. Here, the husband agreed to a contract which provided for the transfer of the property only if a condition precedent was met. This condition precedent has not been met and the husband is not entitled to a conveyance under this separation agreement. That is the only question that was decided by each of the courts below and each of them decided it correctly. I therefore join the majority in voting to affirm.\nIn view of the dissenting opinions, I would note that this Court has not resurrected Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693, but simply recognized the absence of any ambiguity in the meaning of the clause in question at the time of the execution of the separation agreement.\nJustice MARTIN joins in this concurring opinion.", "type": "concurrence", "author": "Justice FRYE" }, { "text": "Justice Meyer\ndissenting.\nI concur in all respects with the dissent of Justice Whichard but wish to add my observations concerning what I perceive to be the majority\u2019s erroneous application of the rules governing summary judgment.\nThe majority concludes that certain language from the separation agreement in question, specifically the phrase \u201cif the parties have lived continuously separate and apart for that full period\u201d (one year), is unambiguous and subject to but one reasonable interpretation. For this case at least, says the majority, this interpretation is that a husband and wife live \u201ccontinuously separate and apart\u201d only if they do not engage in even a single act of sexual intercourse. Because it is admitted that the parties had sexual intercourse on at least one occasion during the period of time in question, continues the majority, the trial court\u2019s order granting the wife\u2019s motion for summary judgment was proper. In fact, the disputed language from the separation agreement is perfectly susceptible to at least two different and plausible meanings \u2014 either of which a jury could and should have been allowed to find as reflecting the intent of the parties when they entered into the contract of separation. In my opinion, the majority has clearly erred in affirming summary judgment for the wife.\nRule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment will be granted only where a forecast of the evidence shows that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982); N.C.G.S. \u00a7 1A-1, Rule 56(c) (1983). The party moving for summary judgment must establish the lack of any triable issue, and all inferences of fact from the evidence proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 354 S.E. 2d 495 (1987). Summary judgment is a harsh and drastic remedy not to be granted \u201cunless it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law.\u201d Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E. 2d 214, 217 (1975) (emphasis added). Most importantly, a motion for summary judgment should be denied \u201cif different material conclusions can be drawn from the evidence.\u201d Credit Union v. Smith, 45 N.C. App. 432, 437, 263 S.E. 2d 319, 322 (1980).\nNotwithstanding the majority\u2019s conclusion to the contrary, there is indeed a genuine issue of material fact in the case at bar \u2014 namely, just what this husband and wife intended by their use of the phrase \u201clived continuously separate and apart\u201d in paragraph four of the disputed separation agreement. The majority here concludes incorrectly that the contested language could only be interpreted to mean that husband and wife must refrain from even a single act of sexual intercourse in order for the transfer of interest under paragraph four to go forward. In fact, the language used here by the parties is ambiguous. It could no doubt just as easily be found, for example, that these parties intended the language to mean that, during the year in question, they must not resume living together in the same household as husband and wife. In that event, the property would go to the husband. Where the language in question is unclear and the parties\u2019 intentions are in doubt, interpretation of an agreement is for the jury under proper instructions from the court. Parker Marking Systems, Inc. v. Diagraph-Bradley Industries, Inc., 80 N.C. App. 177, 341 S.E. 2d 92, disc. rev. denied, 317 N.C. 336, 346 S.E. 2d 502 (1986).\nThis case is for the jury and entry of summary judgment for the wife was improper.\nJustice WHICHARD joins in this dissenting opinion.", "type": "dissent", "author": "Justice Meyer" }, { "text": "Justice WHICHARD\ndissenting.\nThe majority bases its holding on Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693 (1978), in which this Court held that \u201csexual intercourse between a husband and wife after the execution of a separation agreement avoids the contract.\u201d Murphy, 295 N.C. at 397, 245 S.E. 2d at 698. The decision in Murphy has been uniformly and severely criticized. An early critique stated:\nThis decision is supported neither by reason nor by precedent. It directly conflicts with a desirable policy of preserving marriages by encouraging reconciliation attempts between separated spouses who have made a separation agreement, it is a much narrower holding than the facts of the case demanded, and it inexplicably rejects case law developed by the court of appeals.\nSurvey of Developments in North Carolina Law, 1978, 57 N.C.L. Rev. 827, 1096 (1979). Professor Sally Sharp, a leading commentator on North Carolina family law, has observed:\nIt is impossible, and useless, to speculate about what prompted the supreme court to rule as it did in Murphy. Certainly it would have been difficult for the court to have implied an intent to reconcile and resume marital relations from isolated acts of sexual intercourse. An attempt to reconcile could well be implied, but hardly a fully formed intent. The result of the holding is that parties (or at least one party) will be penalized for trying to reconcile if he or she is unsuccessful in that attempt. The conclusion that this result tends to inhibit efforts to reconcile seems inescapable.\n. . . [T]he principle that single acts of intercourse will constitute a reconciliation and therefore rescind a valid separation agreement should be given serious reconsideration. Neither the interest of the state in preserving marriage nor the interests of the parties in relying upon their contract is well served by the present rule.\nS. Sharp, Divorce and the Third Party: Spousal Support, Private Agreements, and the State, 59 N.C.L. Rev. 819, 841-43 (1981). See also S. Sharp, The Partnership Ideal: The Development of Equitable Distribution in North Carolina, 65 N.C.L. Rev. 195, 204-05 n.52 (1987) (refers to \u201cthe Draconian effect of the Murphy rule\u201d and notes that \u201c[t]he issue . . . remains a serious problem\u201d); Note, Domestic Relations \u2014 Enforcement of Contractual Separation Agreements by Specific Performance \u2014 Moore v. Moore, 16 Wake Forest L. Rev. 117 (1980) (\u201c[WJhile the isolated-acts test serves the goal of judicial efficiency, it undermines the goal of judicial integrity.\u201d).\nPerhaps in response to these critiques of Murphy, the General Assembly provided in the Equitable Distribution Act that parties may make a written agreement providing for distribution of their property \u201c[b]efore, during or after marriage.\u201d N.C.G.S. \u00a7 50-20(d) (1987). The Court of Appeals has interpreted the effect of this section to be that spouses may now execute a property settlement at any time, without separating afterwards, Buffington v. Buffington, 69 N.C. App. 483, 317 S.E. 2d 97 (1984), and that such settlements are not necessarily terminated by reconciliation, 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). In my view those cases were correctly decided and accurately reflect both legislative intent in the enactment of N.C.G.S. \u00a7 50-20(d) and sound public policy. If spouses may make an agreement for a property settlement during marriage, it follows that after execution of the agreement, they may continue to live together, or have sexual relations while living apart, without voiding the agreement.\nThe separation agreement here was entered into subsequent to the effective date of N.C.G.S. \u00a7 50-20(d). The agreement recites in paragraph 21 that it constitutes a distribution of marital property pursuant to that statute. Therefore, it was not voided by the parties\u2019 episodic sexual relations.\nIf Murphy governs, as the majority holds, the agreement is void, and the language used therein is immaterial. The majority thus is incorrect, under its view of the law, in stating that \u201c[t]he resolution of this appeal depends on the interpretation of the words of the agreement \u2018if the parties have lived continuously separate and apart for that full [one year] period.\u2019 \u201d The language of a void agreement is immaterial, so questions of interpretation do not arise.\nWhile Murphy established a clear legal consequence for even a single act of sexual intercourse after entering a separation agreement \u2014 a consequence now removed by the enactment of N.C.G.S. \u00a7 50-20(d) \u2014 it did not give singular semantic or legal significance, divorced from context and intent, to the words \u201clived continuously separate and apart.\u201d The majority goes beyond the actual holding in Murphy in holding that it did.\nThe spouses here testified to their differing interpretations of the phrase \u201clived continuously separate and apart\u201d in the context of their separation agreement. The wife testified:\nIt meant that in a year\u2019s time if we lived continuously separate and apart that I would sign the house over. At the time I . . . signed the house over I thought that [my husband] and I would divide the interest in the house as far as my marital interest even though it was not stated. That\u2019s how I interpreted this paragraph. ... If we lived continuously separate and apart. That meant no contact whatsoever. That I would sign the house over and I would be given my marital interest in the property. ... I was obligated to turn the house over if we had no contact as far as having sex, going anywhere together appearing as husband and wife. If we had had no contact, if he went his separate way, I went my separate way, we did not talk about going back together, then I was going to sign [over] the house and I thought I would be getting my part of the house.\nShe further testified that she thought that if she and her husband had \u201csexual relations or even spen[t] the night together ... , it voided [the agreement]. That was, to [her], going back and living as husband and wife.\u201d The husband testified, contrastingly:\nQ. What did you think paragraph 4 meant when you signed that agreement?\nA. I took it that if we\u2019re not living together after the first year that she would sign the house over to me.\nQ. . . . Did you think that if you had sex with her during that year that it would have anything to do with whether or not she was obligated to sign the house over to you?\nA. No.\nQ. Did anybody tell you . . . that having sex with her might void the provisions of paragraph 4?\nA. No.\nAs a matter of semantics, it cannot be gainsaid that the disputed language is subject to the different and plausible meanings expressed in the foregoing testimony. The language is in fact, and should be in law, ambiguous.\nAs stated in Justice Meyer\u2019s dissent: \u201cWhere the language in question is unclear and the parties\u2019 intentions are in doubt, interpretation of an agreement is for the jury under proper instructions from the court. Parker Marking Systems, Inc. v. Diagraph-Bradley Industries, Inc., 80 N.C. App. 177, 341 S.E. 2d 92, disc. rev. denied, 317 N.C. 336, 346 S.E. 2d 502 (1986).\u201d And, as stated in Judge Orr\u2019s dissent for the Court of Appeals:\n[Resumption of sexual relations does not, as a matter of law, void a N.C.G.S. \u00a7 50-20(d) agreement. Therefore, to conclude that the parties \u201cno longer live separate and apart\u201d because of the resumption of sexual relations, is to give the phrase a meaning beyond the context of this agreement and affix to it a meaning reserved for situations other than a property settlement under N.C.G.S. \u00a7 50-20(d). There is no basis in our statutes or case law to conclude that the incorporation of the phrase \u201clive separate and apart for one year\u201d into a N.C.G.S. \u00a7 50-20(d) agreement means that sexual relations will result in the conclusion, as a matter of law, that the parties no longer live separate and apart. The intent of the parties as to the application of this phrase in their agreement is instead a question to be decided by the trier of fact.\nHiggins v. Higgins, 86 N.C. App. 513, 520, 358 S.E. 2d 553, 557 (1987).\nBy enacting N.C.G.S. \u00a7 50-20(d), the General Assembly attempted to put to rest, in the context presented here, \u201cthe Draconian effect of the Murphy rule.\u201d S. Sharp, supra, 65 N.C.L. Rev. 195, 205 n.52. The majority today \u2014 unfortunately, in my view\u2014 resurrects the rule and its effect under the guise of a semantic certainty that is in fact absent. Not only does the majority resurrect Murphy from a well-deserved demise, but in the process it stretches it beyond its original effect. I find the holding of the majority contrary to express legislative enactment and neither required by the statutes and case law nor desirable as a matter of public policy. I therefore respectfully dissent.", "type": "dissent", "author": "Justice WHICHARD" } ], "attorneys": [ "Hatfield & Hatfield, by Kathryn K. Hatfield, for plaintiff-appellee.", "McNairy, Clifford, Clendenin & Parks, by Joy R. Parks, for defendant appellant." ], "corrections": "", "head_matter": "LARRY N. HIGGINS v. JOANNE W. HIGGINS and JOANNE W. HIGGINS v. LARRY N. HIGGINS\nNo. 486A87\n(Filed 3 February 1988)\nHusband and Wife \u00a7 12\u2014 separation agreement \u2014 property settlement \u2014 living separate and apart \u2014 effect of sexual relations\nA provision of a separation agreement which required the wife to transfer to the husband her interest in the marital residence if the parties \u201clived continuously separate and apart\u201d for a full year after the date of the agreement was not enforceable where the parties engaged in sexual intercourse during the one-year period, since a husband and wife do not live \u201cseparate and apart\u201d if they have sexual relations.\nJustice Frye concurring in result.\nJustice Martin joins in this concurring opinion.\nJustice Meyer dissenting.\nJustice Whichard joins in this dissenting opinion.\nJustice Whichard dissenting.\nAPPEAL by Larry N. Higgins pursuant to N.C.G.S. \u00a7 7A-30(2) from an opinion by a divided panel of the Court of Appeals at 86 N.C. App. 513, 358 S.E. 2d 553 (1987). Heard in the Supreme Court 9 December 1987.\nAppellant-husband and appellee-wife were married on 10 March 1979 and separated in November of 1983. The parties executed a separation agreement on 13 December 1983 which purported, in part, to distribute the marital property owned by the parties pursuant to N.C.G.S. \u00a7 50-20(d).\nThe basis of the dispute before this Court concerns Paragraph 4 of this \u201cAgreement and Deed of Separation,\u201d which reads in part as follows:\nIt is agreed that the residence and lot located at 3207 Edgewater Drive, Greensboro, North Carolina, shall remain titled in the name of Larry N. Higgins and JoAnne Higgins for a period of one year from the date of this Agreement and it is agreed that if the parties have lived continuously separate and apart for that full period that in that event Mrs. Higgins shall transfer her interest in the residence and lot to Mr. Higgins as part of property settlement as provided herein. Mr. Higgins and Mrs. Higgins have agreed upon a division of all their personal property and Mrs. Higgins agrees to remove all the personal property that she shall be entitled to from the residence located at 3207 Edgewater Drive within a reasonable time after execution of this agreement. (Emphasis added.)\nThis agreement also contained mutual releases of property rights and a waiver of equitable distribution.\nIn December 1984, one year after the execution of the separation agreement, the appellant asked the appellee to transfer her interest in the marital residence to. him, in conformity with the fourth paragraph. When she refused to do so, he brought an action for a declaratory judgment, asking the court to order the appellee to comply with the terms of paragraph four. In response, the appellee brought an action for absolute divorce and for equitable distribution of the marital residence and certain personal property. The two actions were consolidated for hearing and Mrs. Higgins made a motion for summary judgment.\nThe papers submitted by the appellee at the hearing on the motion for summary judgment showed the following: The appellee moved out of the marital residence upon execution of the separation agreement and the parties ceased living together at that time. However, during the one year period following execution of this agreement, the parties traveled to Tennessee and Florida together to attend car and t-shirt shows. At each of the shows, the parties shared a motel room for up to four days. In each of these instances, the parties engaged in one or more acts of sexual intercourse. Appellee also attended the funeral of appellant\u2019s brother with appellant in March 1984, driving to and from the funeral with appellant and sharing a room with him on that occasion for two nights.\nOver the course of the remainder of 1984, the appellant and the appellee attended several events together. They took their daughter to the circus in February of 1984 and the appellee took the appellant to the hospital for minor surgery in March of the same year. During the course of these events, the parties engaged in several acts of sexual intercourse.\nThe appellant, while disputing the number of times, admitted engaging in intercourse with his wife during this time period. The parties also spent at least two nights together in the former marital residence during their one-year separation.\nThe district court granted the appellee\u2019s motion for summary judgment and dismissed the appellant\u2019s action. The Court of Appeals affirmed with a dissent. Mr. Higgins appealed to this Court.\nHatfield & Hatfield, by Kathryn K. Hatfield, for plaintiff-appellee.\nMcNairy, Clifford, Clendenin & Parks, by Joy R. Parks, for defendant appellant." }, "file_name": "0482-01", "first_page_order": 510, "last_page_order": 521 }