{ "id": 4150860, "name": "DEBORAH HAMPTON BIRD v. JAMES CALVIN BIRD, II", "name_abbreviation": "Bird v. Bird", "decision_date": "2010-01-29", "docket_number": "No. 545A08", "first_page": "774", "last_page": "784", "citations": [ { "type": "official", "cite": "363 N.C. 774" } ], "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": "668 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642209 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/se2d/668/0039-01" ] }, { "cite": "193 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161751 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/nc-app/193/0123-01" ] }, { "cite": "656 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640374 ], "weight": 12, "year": 2008, "pin_cites": [ { "page": "720", "parenthetical": "holding that conflicting evidence related to various factors including frequency of overnight visits by alleged cohabiting man presented genuine issues of material fact" }, { "page": "718" }, { "page": "719-20" }, { "page": "811" }, { "page": "720" }, { "page": "811-12" }, { "page": "720" }, { "page": "812" }, { "page": "720" }, { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0716-01" ] }, { "cite": "668 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642209 ], "weight": 10, "year": 2008, "pin_cites": [ { "page": "127" }, { "page": "42" }, { "page": "130" }, { "page": "43" }, { "page": "129" }, { "page": "43" }, { "page": "131" }, { "page": "44", "parenthetical": "Jackson, J., dissenting" }, { "page": "44", "parenthetical": "majority" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0039-01" ] }, { "cite": "379 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "324 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483781 ], "year": 1989, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0518-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "694", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "471", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "339 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519752 ], "year": 1986, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0163-01" ] }, { "cite": "409 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1991, "pin_cites": [ { "page": "723", "parenthetical": "emphasis omitted" }, { "page": "723" }, { "page": "724", "parenthetical": "quoting Black's Law Dictionary 236 (5th ed. 1979)" }, { "page": "725" }, { "page": "724" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522462 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0490-01" ] }, { "cite": "599 S.E.2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "parenthetical": "holding sexual relationship and occasional trips and dates insufficient standing alone to show cohabitation" }, { "page": "926-27" }, { "page": "928" }, { "page": "928", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 859", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000460 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "863", "parenthetical": "holding sexual relationship and occasional trips and dates insufficient standing alone to show cohabitation" }, { "page": "860" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0859-01" ] }, { "cite": "188 N.C. App. 806", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155993 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "812", "parenthetical": "holding that conflicting evidence related to various factors including frequency of overnight visits by alleged cohabiting man presented genuine issues of material fact" }, { "page": "808" }, { "page": "811-12" }, { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0806-01" ] }, { "cite": "1995 N.C. Sess. Laws 641", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 3, "opinion_index": 0 }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "513 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "325", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "350 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132102 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "220", "parenthetical": "emphasis added" }, { "page": "221-22" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0214-01" ] }, { "cite": "218 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "835", "parenthetical": "citing Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975)" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "83", "parenthetical": "citing Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "190 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "495 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "911", "parenthetical": "citing Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972)" }, { "page": "913", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551066 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "526", "parenthetical": "citing Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972)" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0520-01" ] }, { "cite": "186 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "405", "parenthetical": "holding that a portion of an affidavit stating, \"[T]he plaintiff is advised and informed that.. .\" could not be considered" } ], "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "pin_cites": [ { "page": "467", "parenthetical": "holding that a portion of an affidavit stating, \"[T]he plaintiff is advised and informed that.. .\" could not be considered" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "\"[Summary] judgment is appropriate only when the record shows that 'there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' \"" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "\"[Summary] judgment is appropriate only when the record shows that 'there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "193 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161751 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "130-31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0123-01" ] } ], "analysis": { "cardinality": 981, "char_count": 22660, "ocr_confidence": 0.753, "pagerank": { "raw": 8.102236716971902e-08, "percentile": 0.4676900081819442 }, "sha256": "28e32e2144f422eadbfb9d655846f3035ea86a76a354ce9519e9fd9d7baf4532", "simhash": "1:3af3d48326bcf35c", "word_count": 3580 }, "last_updated": "2023-07-14T21:19:39.869638+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBORAH HAMPTON BIRD v. JAMES CALVIN BIRD, II" ], "opinions": [ { "text": "MARTIN, Justice.\nThis appeal from a divided decision of the Court of Appeals presents the question of whether defendant\u2019s forecast of evidence was sufficient to overcome plaintiff\u2019s motion for summary judgment. The Court of Appeals held that the trial court erred in granting summary judgment to plaintiff. We affirm.\nPlaintiff Deborah Hampton Bird and defendant James Calvin Bird, II were married on 18 August 1985 and legally separated on or about 1 January 2004. On 25 June 2004, plaintiff filed a .complaint in District Court, Guilford County, seeking child custody, child support, postseparation support, alimony, and equitable distribution of marital property.\nIn an order entered on 3 February 2006, the trial court directed defendant to pay alimony to plaintiff in the amount of $5,592.27 per month from November 2005 through October 2008. Thereafter, defendant was ordered to pay $5,497.27 per month from November 2008 through October 2020. The trial court also ordered that defendant make a lump-sum payment of $10,000.00 every April beginning in 2007 and ending with the last such payment in 2020.\nOn 30 May 2007, defendant filed a motion to terminate the alimony order pursuant to N.C.G.S. \u00a7 50-16.9. In the motion defendant alleged that plaintiff was cohabiting with another man and that, as,a result, defendant was permitted to terminate alimony payments. On 6 September 2007, plaintiff responded by filing a motion alleging that she was \u201centitled to a summary judgment in her favor, denying the defendant\u2019s motion to terminate alimony.\u201d In support of her motion, plaintiff submitted the affidavit of Michael Scott Cooper (the Cooper Affidavit). On 26 October 2007, defendant submitted an affidavit signed by Ann W. Cunningham (the Cunningham Affidavit) in opposition to plaintiff\u2019s motion for summary judgment. On 29 October 2007, the trial court granted plaintiff\u2019s motion for summary judgment.\nOn appeal, the Court of Appeals reversed the trial court\u2019s grant of summary judgment in favor of plaintiff. Bird v. Bird, 193 N.C. App. 123, 668 S.E.2d 39 (2008). The Court of Appeals concluded that the affidavits submitted by both parties created a genuine issue of material fact on cohabitation. Id. at 127, 668 S.E.2d at 42. Although Cunningham used the passive voice in her affidavit to describe events observed, the Court of Appeals concluded the Cunningham Affidavit complied with Rule of Civil Procedure 56(e) because it was \u201creasonable to assume that [she] was the observer referenced in her averments.\u201d Id. at 130, 668 S.E.2d at 43. Noting that the Cooper Affidavit, \u201cstanding alone, might give rise to an issue of fact on cohabitation,\u201d the court reviewed both affidavits and concluded they \u201cclearly raised\u201d an issue of fact. Id. at 129, 668 S.E.2d at 43. The dissenting judge believed that the Cunningham Affidavit did not comply with Rule 56(e) and that summary judgment in plaintiff\u2019s favor should be affirmed. Id. at 131, 668 S.E.2d at 44 (Jackson, J., dissenting).\nPlaintiff appealed as of right to this Court based on the dissenting opinion. On 5 February 2009, this Court allowed plaintiff\u2019s petition for discretionary review as to additional issues.\nAt the outset, we consider whether the affidavit signed by Ann W. Cunningham complies with Rule 56(e) of the North Carolina Rules of Civil Procedure.\n\u201cWhen a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(e) (2009); see In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (\u201c[Summary] judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d) (citations omitted). \u201cSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(e) (2009).\nIt is well settled that Rule 56(e) affidavits must be based on the affiant\u2019s personal knowledge. See Singleton v. Stewart, 280 N.C. 460, 467, 186 S.E.2d 400, 405 (1972) (holding that a portion of an affidavit stating, \u201c[T]he plaintiff is advised and informed that.. .\u201d could not be considered). Nonetheless, \u201cthe evidence forecast by the party against whom summary judgment is contemplated is to be indulgently regarded, while that of the party to benefit from summary judgment must be carefully scrutinized.\u201d Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citing Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 193 (1972)). Moreover, the trial court should consider the Rule 56 forecasts of evidence in the light most favorable to the non-moving party. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citing Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975)). Ultimately, \u201c [i]f there is any question as to the weight of evidence, summary judgment should be denied.\u201d Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 325 (1999) (emphasis added) (citing Kessing v. Nat\u2019l Mortgage Corp., 278 N.C. 523, 535, 180 S.E.2d 823, 830 (1971)).\nDefendant, the nonmoving party in the trial court here, asserted that plaintiff cohabited with another man, Michael Scott Cooper, and sought to terminate his alimony payments to plaintiff on that basis. Defendant tendered the Cunningham Affidavit in opposition to plaintiff\u2019s motion for summary judgment. In her affidavit, Cunningham averred that she was a private investigator with Cunningham & Associates and a member of the National Association of Investigative Services. She further stated:\n3.\nI was retained to investigate Michael Scott Cooper and Deborah Hampton Bird to determine whether they cohabited.\n4.\nMichael Scott Cooper was observed during the months of February and March 2007.\n5.\nDuring the investigation, Michael Scott Cooper was observed at Deborah Hampton Bird\u2019s residence for a minimum of eleven (11) consecutive nights.\n6.\nDuring the investigation, Michael Scott Cooper was observed on numerous occasions driving the vehicle of Ms. Hampton Bird, and she was observed driving his vehicle on numerous occasions.\n7.\nDuring the investigation, Michael Scott Cooper was observed moving furniture and boxes into the residence of Ms. Hampton Bird.\n8.\nDuring the investigation, Michael Scott Cooper\u2019s residence in Hillsborough, NC appeared as though no one lived in the house. A rug had been rolled up in the middle of the living room floor, and furniture seemed to be absent from the house. There were two ceiling fans in boxes on the floor. A fine layer of dust could be seen on the furniture and floor. The office in the house was observed to be dusty. Plants in said residence appeared to be in need of water.\n13.\nMichael Scott Cooper was observed to park, regularly, in Deborah Hampton Bird\u2019s garage.\n14.\nMichael Scott Cooper was regularly observed assisting Ms. Bird with chores such as walking the dog, taking care of the dog, unloading the vehicle when she returned from trips, and assisting her when she returned from the grocery store.\n15.\nOn at least one occasion, Michael Scott Cooper was observed allowing workmen into the home of Ms. Bird when she was not \u25a0present. He remained in the home during the entire time the workmen serviced the home and then he showed them out of the house.\nPlaintiff argues that the repeated use of the passive voice in the Cunningham Affidavit fails to satisfy the personal knowledge requirement of Rule 56(e).\nWe disagree and hold that the trial court was permitted to consider the Cunningham Affidavit under the specific facts of this case. As an initial matter, Cunningham\u2019s statement that she \u201cwas retained to investigate Michael Scott Cooper and Deborah Hampton Bird to determine whether they cohabited\u201d raises a reasonable inference that everything in her affidavit is based on her personal knowledge as an investigator. Although her investigative agency is titled \u201cCunningham & Associates,\u201d there is no record or mention of any other individual performing the instant investigation. To be sure, the trial court\u2019s duty to treat indulgently the Rule 56 materials of the party opposing the motion reasonably encompasses the passive voice averments set forth in the Cunningham Affidavit. Accordingly, we affirm the Court of Appeals on this question.\nWe next consider whether the forecasted evidence of cohabitation was sufficient to overcome plaintiff\u2019s motion for summary judgment.\nThe General Assembly enacted the current version of the alimony statute in 1995. Act of June 21, 1995, ch. 319, sec. 2, 1995 N.C. Sess. Laws 641 (codified at N.C.G.S. \u00a7\u00a7 50-16.1A to -16.9 (2009)). The present statute \u201creflects the modern notions of need as the basis for alimony [and] grant[s] the court authority also to consider fault.\u201d 2 Suzanne Reynolds & Jacqueline Kane Connors, Lee\u2019s North Carolina Family Law \u00a7 9.3, at 283 (5th ed. 1999) [hereinafter Lee\u2019s Family Law]. Under the current statute, \u201c[i]f a dependent spouse . . . engages in cohabitation . . . alimony shall terminate.\u201d N.C.G.S. \u00a7 50-16.9(b) (2009).\nCohabitation is defined by statute as \u201cthe act of two adults dwelling together continuously and habitually in a private heterosexual relationship.\u201d Id. \u201cCohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.\u201d Id. Therefore, to find cohabitation, there must be evidence of: (1) a \u201cdwelling together continuously and habitually\u201d of two adults and (2) a \u201cvoluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people.\u201d Id.; see Lee\u2019s Family Law \u00a7 9.85, at 494-95; cf. Craddock v. Craddock, 188 N.C. App. 806, 812, 656 S.E.2d 716, 720 (2008) (holding that conflicting evidence related to various factors including frequency of overnight visits by alleged cohabiting man presented genuine issues of material fact); Oakley v. Oakley, 165 N.C. App. 859, 863, 599 S.E.2d 925] 928 (2004) (holding sexual relationship and occasional trips and dates insufficient standing alone to show cohabitation).\nThe parties\u2019 forecast of evidence in the present case consisted primarily of the Cooper and the Cunningham affidavits. Cooper conceded that he \u201cwas involved intermittently in a romantic relationship with the plaintiff.\u201d Cooper also averred that during his relationship with plaintiff, they dated each other exclusively at times and casually at other times. Cooper stated that he rented the house he owned in Summerfield, North Carolina, in order to move his residence to Hillsborough, North Carolina, and while doing so, he \u201cstayed occasionally\u201d with plaintiff. Though acknowledging that he swapped vehicles with plaintiff, Cooper claimed he used plaintiff\u2019s vehicle solely because \u201cher . . . vehicle was more suited for moving furniture.\u201d Cooper also stated that he gave plaintiff furniture he no longer needed and helped her move it into her home. However, he claimed that he \u201cnever moved [his] property into [her] residence\u201d and that he \u201cdid not share finances\u201d with plaintiff. Finally, he acknowledged that plaintiff and he took \u201ctrips together\u201d and \u201cdined together with her children.\u201d On the ultimate question, Cooper stated that he never cohabited with plaintiff.\nCunningham alleged in her affidavit that Cooper had been observed at plaintiff\u2019s home \u201cfor a minimum of eleven (11) consecutive nights\u201d; that plaintiff and Cooper were observed driving each other\u2019s vehicles; that Cooper was observed moving furniture and boxes into plaintiff\u2019s home, walking plaintiff\u2019s dog, parking in plaintiff\u2019s garage, and carrying groceries into plaintiff\u2019s home; that Cooper let workers into and out of plaintiff\u2019s home; and that Cooper\u2019s residence in Hillsborough appeared neglected \u201cas though no one lived in the house.\u201d\nThe parties have not cited and we have not located a case addressing the quantum of forecasted evidence necessary to present an issue of material fact on the question of cohabitation. The Court of Appeals, however, has addressed this issue on numerous occasions. Prior to the 1995 version of the alimony statute, the Court of Appeals decided Rehm v. Rehm, 104 N.C. App. 490, 409 S.E.2d 723 (1991). In that case, the parties entered into a separation agreement whereby the husband would pay alimony to the wife until a series of events occurred, including \u201cif the wife cohabits with someone of the opposite sex.\u201d Id. at 491, 409 S.E.2d at 723 (emphasis omitted). After the husband stopped paying alimony based on the wife\u2019s alleged cohabitation, the wife sought to recover the unpaid alimony. Id. The wife appealed from the trial court\u2019s order terminating the husband\u2019s obligation to pay alimony. 104 N.C. App. at 492, 409 S.E.2d at 723.\nLacking a statutory definition of cohabitation at that time, the Court of Appeals considered the dictionary definition of that term: \u201cTo live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.\u201d Id. at 493, 409 S.E.2d at 724 (quoting Black\u2019s Law Dictionary 236 (5th ed. 1979)). The court found \u201csufficient evidence ... to support the findings of fact and adequate findings of fact to support the trial court\u2019s conclusions of law\u201d that the former wife had engaged in cohabitation. Id. at 494, 409 S.E.2d at 725. The findings of fact included the following: the wife had monogamous sexual relations with a man who was an overnight guest in her home as many as five times per week; when leaving the home he kissed the wife goodbye; and he went on trips lasting more than one day with the wife and sometimes with a minor child. Id. at 492-93, 409 S.E.2d at 724.\nAfter the 1995 revisions to the alimony statute, the Court of Appeals again considered when alimony should terminate based on cohabitation. In Oakley v. Oakley, the wife filed a motion for contempt against her former husband for failure to pay alimony. 165 N.C. App. at 860, 599 S.E.2d at 926-27. The husband claimed his former wife\u2019s alleged cohabitation extinguished his alimony obligation. The Court of Appeals affirmed the trial court\u2019s findings and conclusion that the wife did not engage in cohabitation. Id. at 863, 599 S.E.2d at 928.\nIn its analysis the Court of Appeals addressed the voluntary assumption of marital rights and duties under section 50-16.9 by considering the law that defines resumption of the marital relationship. Id. at 862, 599 S.E.2d at 928 (citing N.C.G.S. \u00a7 52-10.2 (2009) (defining \u201c[Resumption of marital relations\u201d as \u201cvoluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated instances of sexual intercourse . . . shall not constitute resumption of marital relations.\u201d)). Under this approach, two methods are utilized to determine whether the parties have resumed their marital relationship: (1) \u201cwhere there is objective evidence, that is not conflicting, that the parties have held themselves out as man and wife, the court does not consider the subjective intent of the parties\u201d; (2) \u201cwhere the objective evidence of cohabitation is conflicting,\u201d the parties\u2019 \u201csubjective intent\u201d can be considered. Id. at 863, 599 S.E.2d at 928 (citations omitted). Applying this methodology to the question of cohabitation, the court determined that the defendant had failed to present any evidence of activities beyond a sexual relationship and occasional trips and dates. Id. Accordingly, because there was \u201cno assumption of any \u2018marital rights, duties, and obligations which are usually manifested by married people,\u2019 \u201d id., the court affirmed the trial court\u2019s findings and conclusion that the plaintiff had not engaged in cohabitation.\nAnother cohabitation case, Craddock v. Craddock, concerned an action to recover alimony based on the provisions of the parties\u2019 separation agreement. 188 N.C. App. at 808, 656 S.E.2d at 718. The separation agreement included a termination clause for cohabitation. Id. The Court of Appeals applied the Oakley analysis and considered the parties\u2019 subjective intent along with objective evidence of cohabitation. 188 N.C. App. at 811-12, 656 S.E.2d at 719-20. The court found that the former wife had a mutually exclusive relationship with another man. Id. at 811, 656 S.E.2d at 720. They \u201cwent out to eat dinner or cooked meals together on the weekends, went to movies, traveled together on overnight vacations, spent holidays together, exchanged gifts, and engaged in monogamous sexual activity.\u201d Id. at 811-12, 656 S.E.2d at 720.\nThe evidence in Craddock conflicted, however, over how often the man stayed overnight, whether he permanently kept clothes at the former wife\u2019s home, and \u201cto what extent [he] used plaintiff\u2019s residence as his \u2018base of operations\u2019 for his real estate appraisal business.\u201d Id. at 812, 656 S.E.2d at 720. Reversing the trial court\u2019s grant of summary judgment in the wife\u2019s favor, the Court of Appeals observed that \u201c \u2018[s]ummary judgment is rarely proper when a state of mind . . . is at issue.\u2019 \u201d Id. (quoting Valdese Gen. Hosp., Inc. v. Burns, 79 N.C. App. 163, 165, 339 S.E.2d 23, 25 (1986)). The court ultimately concluded that \u201cgenuine issues of material fact exist[ed] on whether plaintiff and [another man] engaged in cohabitation.\u201d 188 N.C. App. at 812, 656 S.E.2d at 720.\nTurning to the present case, the forecast of evidence is sufficient to overcome summary judgment. Cunningham\u2019s investigation determined that Cooper stayed in the plaintiff\u2019s home for eleven consecutive nights. Both affidavits acknowledged that Cooper and plaintiff exchanged vehicles, and Cooper\u2019s vehicle was regularly observed at plaintiff\u2019s home. Cunningham also observed Cooper moving furniture and boxes into plaintiff\u2019s home. Cunningham noted that Cooper allowed workers into plaintiff\u2019s residence and apparently supervised their work before escorting them out of the home. Significantly, Cooper\u2019s residence in Hillsborough \u201cappeared as though no one lived [there].\u201d\nEvidence was also forecasted as to the voluntary assumption of marital rights, duties, and obligations by Cooper and plaintiff. The relationship included activities such as sharing in chores and participating in typical family activities like going out to dinner. Cunningham observed Cooper walking plaintiff\u2019s dog and unloading the vehicle when plaintiff returned from trips. All of these incidents, when viewed collectively, tended to show that plaintiff and Cooper voluntarily assumed some degree of marital rights, duties, and obligations.\nAs evidenced by plaintiff and Cooper\u2019s denial of cohabitation, there is also a genuine dispute regarding the subjective intent of plaintiff and Cooper with respect to their relationship. Because summary judgment is \u201cparticularly inappropriate where issues such as motive, intent, and other subjective feelings and reactions are material,\u201d Creech, 347 N.C. at 530, 495 S.E.2d at 913 (citation omitted), the trial court erred by granting plaintiff\u2019s motion for summary judgment.\nLike the Court of Appeals, we express no opinion on the merits. Bird, 193 N.C. App. at 130-31, 668 S.E.2d at 44 (majority) (\u201c \u2018[I]t is not the function of this Court, or the trial court for that matter, to weigh conflicting evidence of record.\u2019 \u201d (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004) (alteration in original))). Nonetheless, because \u201c[s]ummary judgment is inappropriate where reasonable minds might easily differ as to the import of the evidence,\u201d Marcus Bros., 350 N.C. at 221-22, 513 S.E.2d at 326 (citing Dettor v. BHI Prop. Co. No. 101, 324 N.C. 518, 522, 379 S.E.2d 851, 853 (1989)), we hold that the Cunningham Affidavit, when considered alongside the Cooper Affidavit, raises a genuine issue of material fact on the question of cohabitation. The Court of Appeals properly reversed the trial court\u2019s order granting plaintiff\u2019s motion for summary judgment. Accordingly, we affirm the decision of the Court of Appeals.\nAFFIRMED.\n. As has been aptly observed, \u201c[i]n spite of generations of textbooks, use of the passive [voice] has increased.\u201d Webster\u2019s Dictionary of English Usage 720 (1989).", "type": "majority", "author": "MARTIN, Justice." } ], "attorneys": [ "Nix and Cecil, by Lee M. Cecil, for plaintiff-appellant.", "Wyatt Early Harris Wheeler, LLP, by Arlene M. Reardon and Stanley F. Hammer, for defendant-appellee." ], "corrections": "", "head_matter": "DEBORAH HAMPTON BIRD v. JAMES CALVIN BIRD, II\nNo. 545A08\n(Filed 29 January 2010)\n1. Rules of Civil Procedure\u2014 summary judgment \u2014 private investigator\u2019s affidavit \u2014 passive voice \u2014 personal knowledge requirement\nAn affidavit from a private detective in an alimony case that was phrased in the passive voice (\u201cMichael Scott Cooper was observed . . .\u201d) satisfied the personal knowledge requirement of Rule 56(e) where the affidavit began with the statement that the investigator had been retained for the investigation, raising the reasonable inference that everything in her affidavit was based on her personal knowledge. There was no record or mention of any other individual performing the investigation, and the trial court\u2019s duty to treat indulgently the Rule 56 materials of the party opposing the motion reasonably encompassed the passive voice averments in this affidavit.\n2. Divorce\u2014 alimony \u2014 cohabitation\u2014genuine issue of fact\nThe forecasted evidence in an alimony case was sufficient to raise a genuine issue of material fact as to cohabitation by plaintiff former wife where the evidence, viewed collectively, tended to show that plaintiff (who was awarded alimony in the original action) and Cooper voluntarily assumed some degree of marital rights, duties, and obligations, but there was a genuine dispute regarding the subjective intent of plaintiff and Cooper regarding their relationship.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 193 N.C. App. 123, 668 S.E.2d 39 (2008), reversing an order granting summary judgment for plaintiff entered on 29 October 2007 by Judge Joseph E. Turner in District Court, Guilford County. On 5 February 2009, the Supreme Court allowed plaintiffs petition for. discretionary review of additional issues. Heard in the Supreme Court 8 September 2009.\nNix and Cecil, by Lee M. Cecil, for plaintiff-appellant.\nWyatt Early Harris Wheeler, LLP, by Arlene M. Reardon and Stanley F. Hammer, for defendant-appellee." }, "file_name": "0774-01", "first_page_order": 812, "last_page_order": 822 }