Dusenberry v. Dusenberry, 160PA85
| Decision Date | 05 November 1985 |
| Docket Number | No. 160PA85,160PA85 |
| Citation | 314 N.C. 608,335 S.E.2d 892 |
| Court | North Carolina Supreme Court |
| Parties | G. Reid DUSENBERRY, III v. Sue Brown DUSENBERRY (now Fowler). |
Holt, Spencer & Longest by James G. Spencer, Jr., Burlington, and Hunter, Wharton & Howell by John V. Hunter III, Raleigh, for plaintiff-appellant.
Boyce, Mitchell, Burns & Smith by Carole S. Gailor, Raleigh, for defendant-appellee.
In this equitable distribution action Judge Allen, found inter alia, that defendant-wife "began having an adulterous affair ... and began neglecting the plaintiff and their three minor children" which conduct was a "major reason for the break-up of this marriage ... and ... was the only serious and significant mistreatment of either party by the other party during the course of this marriage." There were other extensive findings concerning the fault of the defendant-wife in this connection. Based upon his findings, Judge Allen concluded that the "relative fault of the parties leading to the disintegration of their marriage" was a proper factor for consideration in determining the distribution of the marital assets. Subsequent to the entry of this order by Judge Allen, the Court of Appeals held that fault was not a relevant factor in determining the equitable distribution of marital property. Wade v. Wade, 72 N.C.App. 372, 325 S.E.2d 260 (1984), disc. rev. denied, 313 N.C. 612, 330 S.E.2d 616 (1985); Smith v. Smith, 71 N.C.App. 242, 322 S.E.2d 393 (1984); and Hinton v. Hinton, 70 N.C.App. 665, 321 S.E.2d 161 (1984). The Court of Appeals vacated Judge Allen's order and remanded the cause for a new order "based solely upon relevant and appropriate findings." The Court of Appeals' decision in this case was filed 19 February 1985. In the meantime, we allowed plaintiff's petition in Smith v. Smith, one of the cases relied upon by the Court of Appeals in its decision in the case now before us.
In Smith v. Smith, 314 N.C. 80, 87, 331 S.E.2d 682, 687 (1985), filed subsequent to the Court of Appeals' decision in the instant case, we held that "marital fault or misconduct of the parties which is not related to the economic condition of the marriage is not germane to a division of marital property under 50-20(c) and should not be considered."
This cause is remanded to the Court of Appeals for remand to the District Court of Alamance County for further proceedings in accord with the principles set forth in our opinion in Smith.
MODIFIED AND AFFIRMED.
Of the 58 separately numbered findings of fact made by Judge Allen in this case, approximately 10 relate to the defendant's moral or marital misconduct. Those are as follows:
(22) The Court finds as a fact that both the Plaintiff, Dr. Dusenberry, and the Defendant, now Mrs. Fowler, are 38 years of age and both are in good health. That they lived together continuously as husband and wife until sometime in August, 1980, when the Defendant, Sue Dusenberry at the time, met Winston Fowler, whom she is now married to, and that the Defendant began having an adulterous affair with Mr. Fowler and began neglecting the Plaintiff and their three minor children.
(23) The Court finds that in the spring of 1981 ... the Defendant, Mrs. Dusenberry, began staying away from the marital home and her family more frequently, sometimes being gone for a week at a time. That in August or September of 1981, the Defendant, Sue Dusenberry, told the Plaintiff, G. Reid Dusenberry, she was seeing Winston Fowler and the Court finds that after September, 1981, ... the Plaintiff made a good full faith effort to save their marriage and actually begged the Defendant to stop seeing Winston Fowler.
(24) The Court finds that in December of 1981, the Defendant moved out of the marital home and lived at the Colony Apartments for approximately two months. That she then returned to the marital home but continued to leave for days at a time, leaving the Plaintiff and the three minor children.
(25) The Court does find that in an attempt to save the marriage, ... the Plaintiff arranged for the Plaintiff and Defendant to take a vacation trip to Key West, Florida, in late April, 1982. That the parties returned home at Burlington, North Carolina, on Sunday and then on or about April 27, 1982, the Defendant left the home and her family again and moved to Reston, Virginia, with Winston Fowler and into a continuation of the adulterous affair.
(26) The Court finds as a fact that the Plaintiff and Defendant have lived separate and apart from April 27, 1982, and at no time have resumed the marital relationship and that an absolute divorce was granted by this Court on July 13, 1983.
(27) The Court finds [that] from April 27, 1982, when the Defendant abandoned the Plaintiff and her children and up and through the hearing of the matter on January 17-20, 1984, ... the three minor children, Douglas, now 16, Paige, now 15, and Gregory, now 13, have continuously resided with their father, the Plaintiff in this case. And the Court finds that the Plaintiff, Dr. Dusenberry, is in fact a fit and proper person to have the primary care, custody and control of his minor children.
(28) The Court finds as a fact that the Plaintiff is not absolutely free of all fault in the break-up of this marriage, in particular, that he lost his temper on several occasions, but the Court does find as a fact from the evidence that the Plaintiff never physically assaulted the Defendant and the Court finds that the Plaintiff was faithful to the Defendant throughout the marriage. The Court further finds from all of the evidence that the Defendant's adulterous affair lasting over many months with Winston Fowler was a major reason for the break-up of this marriage between the Plaintiff and the Defendant and the Court does find as a fact that this adulterous affair was the only serious and significant mistreatment of either party by the other party during the course of this marriage.
(29) The Court does find as a fact that after the Defendant began this adulterous relationship with Winston Fowler in August of 1980, ... she was away from the Plaintiff and their children frequently for lengthy periods of time without telling them where she was. That at one point, she lived with Winston Fowler in Virginia for 10 or 11 weeks. On many of these occasions she would not inform the Plaintiff or the children where she was and in many instances, the Plaintiff learned of her absence when the children would call and tell him that no one had picked them up at school or at other places. The Court does find as a fact that these three minor children have suffered psychological problems as a result of the Defendant's behavior and the Plaintiff will be obligated to pay approximately $10,000.00 for continued treatment for these said problems for the minor children.
(30) The Court does find as a fact that when the Plaintiff learned of the Defendant's adulterous relationship with Winston Fowler, ... he was hurt emotionally, that he repeatedly begged the Defendant to give up the relationship, and she consistently refused to do so, and in fact continued it until she married Winston Fowler in September of 1983. After learning of the relationship, the Plaintiff stated his willingness to forgive and forget and made considerable efforts to work on the marriage and restore it. That his efforts failed because of the refusal of the Defendant to give up the relationship with Winston Fowler. The Court does find that the Defendant committed adultery with Winston Fowler repeatedly over a period of more than two years.
(31) The Court does find as a fact that the Defendant's lengthly [sic], adulterous relationship with Winston Fowler and her refusal to give up that relationship were the factors primarily responsible for the break-down and eventually dissolution of this eighteen and a half year marriage.
(32) The Court does find as a fact that the Defendant after the divorce of the parties in July of 1983, married Winston Fowler on September 3, 1983, and now resides with her present husband, Mr. Winston Fowler, in Ohio. That Mr. Fowler has an approximate income of $75,000.00 per year.
Based upon his 58 findings of fact, including 10 of the 11 set out above relating to the marital fault of the wife, Judge Allen set out 12 conclusions of law relating to every conceivable aspect of the marital distribution. A part of conclusion number (5) relates to the marital fault of the wife:
(5) The Court, in reaching its determination as to what constitutes an equitable distribution of the marital property between the parties, has carefully considered the ... services of both of the parties as spouse, parent, ... and homemaker, as well as the lack thereof, ... and the relative fault of the parties leading to the disintegration of their marriage, consideration of which factor in this case the Court finds to be just and proper.
Based upon his findings and conclusions, Judge Allen determined that the marital assets of a net value of $402,483.85 should be allocated $134,161.28 to the wife and $268,322.57 (including the home for his rearing of the children) to the husband. Judge Allen concluded that the wife should bear $7,500 of the $10,000 projected future costs of the treatment of the children for the adjustment disorders resulting from the break-up of the marriage and reduced the $134,161.28 distribution to the wife to $126,661.28.
I am convinced that the legislature fully intended that the trial judge, in his "equitable" distribution of the marital property, could and would consider "moral" or "marital" fault (as opposed to what has been termed "property" fault) which causes the marriage to break up, without regard to its impact on the extent or value of the marital property to be distributed. Such marital fault or misconduct might include adultery, spouse abuse, incest, alcoholism, drug abuse, etc.
We have noted that the intent of the legislature...
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