Cooke v. Cooke

• Decision Date: 21 September 1977
• Docket Number: No. 7615DC965,7615DC965
• Citation: 34 N.C.App. 124,237 S.E.2d 323
• Parties: Phillip W. COOKE v. Ruth Byrd COOKE.
• Court: North Carolina Court of Appeals

Page 323

237 S.E.2d 323

34 N.C.App. 124

Phillip W. COOKE v. Ruth Byrd COOKE.

No. 7615DC965.

Court of Appeals of North Carolina.

Sept. 21, 1977.

Winston, Coleman & Bernholz by J. William Blue, Jr., Chapel Hill, for plaintiff appellant.

Elisabeth S. Petersen and O. William Faison, Jr., Durham, for defendant appellee.

CLARK, Judge.

The plaintiff did not specifically plead reconciliation as a defense in his reply to defendant's counterclaim for payments under the separation agreement. But in his affidavit in response to defendant's motion for summary judgment plaintiff averred that he and his wife agreed "to attempt a reconciliation," and in March or April, 1974 spent a weekend together at the beach, engaging in sexual intercourse, that in early June 1974 they spent two or three nights together and engaged in sexual intercourse; that he was "attempting to reconcile the differences" and it was his "intention . . . to effect a reconciliation," but that in late June, 1974, "we determined that a reconciliation was not possible. . . ."

The trial court excluded plaintiff's affidavit on the ground that reconciliation was an affirmative defense which plaintiff had not specifically pleaded. The exclusion of evidence on the ground that an affirmative defense was not specifically pleaded may be raised properly at trial. G.S. 1A-1, Rule 8; 61 Am.Jur.2d, Pleading (p. 584). But assuming that reconciliation is an affirmative defense which must be specifically pleaded, the nature of summary judgment procedure (G.S. 1A-1, Rule 56), coupled with our generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment. Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976). See also 6 Moore, Federal Practice (2d ed. 1976) § 56-736. "Indeed, in proper cases it is desirable to treat the pleading as though it were amended to conform to the evidence presented at the hearing." Whitten v. AMC/Jeep, Inc., 292 N.C. 84, 90, 231 S.E.2d 891, 894 (1977).

This State has long recognized the general rule that a contract of separation is annulled and rescinded, at least as to the future or as to executory provisions, by a reconciliation and resumption of marital relations. Smith v. King, 107 N.C. 273, 12 S.E. 57 (1890); Hutchins v. Hutchins, 260 N.C. 628, 133 S.E.2d 459 (1963); Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964); Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714 (1965); Tilley v. Tilley, 268 N.C. 630, 151 S.E.2d 592 (1966); Potts v. Potts, 24 N.C.App. 673, 211 S.E.2d 815 (1975); Newton v. Williams, 25 N.C.App. 527, 214 S.E.2d 285 (1975).

But we find that the averments in plaintiff's affidavit are not sufficient to raise the defense of reconciliation. We do not find in the case law of this State a precise definition of "reconciliation." The early cases contain language indicating that the resumption of the conjugal relationship alone would rescind the separation agreement. See Smith v. King, supra; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327 (1912); Moore v. Moore, 185 N.C. 332, 117 S.E. 12 (1923); State v. Gossett, 203 N.C. 641, 166 S.E. 754 (1932). It appears that at one time deeds of separation were held to be invalid. Collins v. Collins, 62 N.C. 153 (1867). And though recognized as valid in Sparks v. Sparks, 94 N.C. 527 (1886), subsequent decisions stated that separation agreements were not favored. It is possible that their unfavored status led to the language implying that the agreements would be breached and rescinded if the parties engaged in sexual intercourse or otherwise violated their agreement to live separate and apart. Nevertheless, an examination of these cases reveals that rescission was based on more than mere casual acts of sexual intercourse. There were other circumstances evidencing that resumption of cohabitation incorporated intent to resume the marriage and an intentional revocation of the agreement as well.

In Newton v. Williams, supra, an action to enforce a separation agreement, the husband pled reconciliation as a defense. In the hearing on motion for summary judgment, it was stipulated by the parties that they had spent three nights together as husband and wife and had engaged in sexual relations, but the wife's affidavit asserted that she did not intend to...