Adamee's Estate, Matter of
Decision Date | 21 December 1976 |
Docket Number | No. 136,136 |
Citation | 230 S.E.2d 541,291 N.C. 386 |
Parties | In the Matter of the ESTATE of Paul Chester ADAMEE, Deceased. |
Court | North Carolina Supreme Court |
Spencer B. Ennis and Latham, Wood & Cooper, Thomas B. Cooper, Jr., Burlington, for petitioners-appellees.
Long, Ridge & Long by Paul H. Ridge and Daniel H. Monroe, Jr., Graham, for Raye T. Adamee.
It is well settled in our law that a separation agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption of the marital relation. Tilley v. Tilley, 268 N.C. 630, 151 S.E.2d 592 (1966); Hutchins v. Hutchins, 260 N.C. 628, 133 S.E.2d 459 (1963); Jones v. Lewis, 243 N.C. 259, 90 S.E.2d 547 (1955); 2 Lee, Family Law, § 200, p. 418 (1963). As Justice Brogden noted in State v. Gossett, 203 N.C. 641, 643, 166 S.E. 754, 755 (1932), the heart of a separation agreement is the parties' intention and agreement to live separate and apart forever, and when a husband and wife enter into a deed of separation the policy of the law is that they are to live separate. Therefore, they void the separation agreement if they re-establish a matrimonial home.
The same public policy which will not permit spouses to continue to live together in the same home--holding themselves out to the public as husband and wife--to sue each other for an absolute divorce on the ground of separation or to base the period of separation required for a divorce on any time they live together, will also nullify a separation agreement if the parties resume marital cohabitation. Whether used in a separation agreement or a divorce statute, the words 'live separate and apart' have the same meaning. The cessation of cohabitation which provides grounds for divorce and the resumption of cohabitation which will abrogate a separation agreement are defined in the same terms.
Separation as grounds for a divorce Young v. Young, 225 N.C. 340, 344, 34 S.E.2d 154, 157 (1945).
In Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489, 491 (1945), Justice Denny (later Chief Justice), said: 'The overwhelming weight of authority as to what is meant by living 'separate and apart,' is in accord with the view expressed in 17 Am.Jur., sec. 162, p. 232 as follows: . . . (Citations omitted.)
We hold that when separated spouses who have executed a separation agreement resume living together in the home which they occupied before the separation, they hold themselves out as man and wife 'in the ordinary acceptation of the descriptive phrase.' Irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinded their separation agreement insofar as it had not been executed. Further, a subsequent separation will not revive the agreement. See Campbell v. Campbell, 234 N.C. 188, 66 S.E.2d 672 (1951).
All the evidence offered by appellees in support of their motion for summary judgment and by appellants in opposition to it, tends to show that after the execution of the separation agreement and consent judgment on 20 December 1973, Mrs. Adamee returned to the marital home which she and Adamee had occupied prior to the separation; that thereafter the commissioners named in the consent judgment to sell the couples' joint property for division were instructed not to do so; that Adamee paid Mrs. Adamee's attorney for representing her in the litigation between them; and that from January 1974 until Adamee's death on 20 August 1974, he and Mrs. Adamee lived together continuously in their marital residence. Therefore, no issue arose for either judge or jury to decide as to their resumption of marital relations. As a matter of law they had done so.
It follows that Judge Braswell correctly denied appellee's motion for summary judgment but that he erred in refusing to affirm the clerk's order that Mrs. Adamee is entitled to qualify as administratrix of the estate of Adamee and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment of 20 December 1973. It also follows that the Court of Appeals erred when it affirmed Judge Braswell's judgment.
It its consideration of this case the Court of Appeals began with the assumption that the appeal involved a disputed fact, that is, whether a reconciliation and resumption of marital relations had actually occurred between Adamee and Mrs. Adamee. We however, have viewed and decided the case as presenting a question of law arising upon undisputed facts.
Having posed the case as it did, the Court of Appeals recognized that our decision in In re Estate of Lowther, 271 N.C. 345, 156 S.E.2d 693 (1967) would control the disposition of the appeal and require a reversal of Judge Braswell's judgment unless subsequently enacted statutes had changed the law upon which Lowther was based. The Court of Appeals then hold that the Judicial Department Act of 1965 had indeed rendered Lowther no longer authoritative for the proposition it decided. This holding, with which we do not agree, requires us to examine and compare the applicable statutes as they existed before and after Lowther.
In Lowther, upon petition of the children of the decedent, on 23 September 1966, the clerk of the superior court, acting under G.S. 28--32 (1966), removed the administratrix (whom he had appointed in 1964) upon his finding that she was not the widow of the decedent. Without challenging that finding by an exception, the administratrix gave notice of appeal to the presiding judge. After a hearing, on 27 December 1966 the judge ordered the cause transferred to the civil issue docket for a determination of the issue by a jury. Upon petitioners' appeal, this Court held (1) that when no exceptions are taken to the specific findings of fact upon which the clerk removes an administrator, an appeal presents only the question whether the facts found support the judgment; (2) that as to any finding of fact properly challenged by an exception, the judge will hear the matter De novo and either affirm, reverse, or modify that finding; and (3) if the judge deems it advisable, he may submit the issue to a jury. Upon appeal we reversed the judgment of the superior court and directed the clerk's order of removal reinstated.
In the present case the Court of Appeals has held that the effect of the repeal of G.S. 2--1 (1969) and the enactment of G.S. 7A--240 and G.S. 7A--241 (1969) was 'to take from the Clerk exclusive original jurisdiction of probate matters, to vest in the Clerk and the Superior Court concurrent jurisdiction of probate matters, and to provide for appeals from the Clerk directly to the judges of superior court, bypassing the district courts, on all such matters heard originally before the Clerks.' In re Adamee, 28 N.C.App. at 234, 221 S.E.2d at 373--74. The conclusion was that, upon appeal, appellees were entitled to have the judge hear and determine all matters in controversy as if the case was originally before him; that the judge, 'in the exercise of his inherent powers' had the right to submit the one issue involved to the jury. The Court directed, however, that '(i)f, in this case, the Superior Court finds error in the order of the Clerk relative to the granting of letters of administration, it will not appoint a personal representative but must remand the cause to the Clerk for this purpose consistent with the decision of the Superior Court; the assignment of original authority of probate matters to the Clerk in G.S. 28A--2--1 is supported by, and not contravened by, G.S. 7A--241.' Id. at 236, 221 S.E.2d at 375.
Lowther originated in the second judicial district and was decided 20 September 1967. At that time the 'Judicial Department Act of 1965,' ch. 310, N.C.Sess.Laws (1965), codified as N.C.Gen.Stats., Ch. 7A, was not applicable in the second judicial district. See G.S. 7A--131 and G.S. 7A--252 (19...
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