Long v. Long
| Decision Date | 21 October 2003 |
| Docket Number | No. COA02-1230.,COA02-1230. |
| Citation | 588 S.E.2d 1,160 NC App. 664 |
| Parties | Kelly Crisp LONG, Plaintiff, v. Charles N. LONG, Defendant. |
| Court | North Carolina Court of Appeals |
The Sandlin Law Firm, by Deborah Sandlin and John Patrick McNeil, Raleigh, for plaintiff-appellant.
Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, Raleigh, for defendant-appellee.
This is an appeal from an order, issued after a bench trial, concluding that the defendant had not breached the parties' separation agreement. Plaintiff argues on appeal: (1) that the trial court erred as a matter of law in concluding that plaintiff was cohabiting, (2) that the findings of fact were not supported by competent evidence, (3) that the court erred in concluding that defendant had not breached the "no interference" provision, (4) that the court erred in concluding that defendant had not breached the time and method of payment provisions and (5) that the court erred in denying the plaintiff's request for attorneys' fees.
Plaintiff and defendant were married on 22 March 1992 and separated on 8 July 1998. The parties are the parents of two minor children. Plaintiff and defendant were granted a divorce on 3 March 2000. An "Interim Separation Agreement" was entered into by the parties on 11 April 2000. This agreement included detailed provisions related to alimony, child support and a "no interference" provision. Under the agreement, defendant was obligated to pay alimony and child support for their two children to the plaintiff by direct deposit from his bank account to hers on the first day of each month, commencing 1 May 2000. The agreement permitted termination of alimony payments upon the occurrence of the first of a list of events. One of these triggering events was "cohabitation by Wife (plaintiff), as that term is defined in N.C.G.S. § 50-16.9." The agreement also provided that neither party was to molest or interfere with the other party in any manner.
Defendant paid the alimony and child support in May and June 2000, but not in the manner prescribed in the agreement. Instead of using the direct deposit method, the defendant paid plaintiff by personal check and payment was late. Plaintiff received the May payments around 4 May 2000 and the June payments around 12 June 2000. During this time, plaintiff and defendant communicated with each other extensively via telephone and email and less frequently in person. The parties' communication was very strained and rude. Also during this time, plaintiff began dating Mr. Parker Bowers. At the end of June, defendant's attorney notified plaintiff by letter that defendant would no longer make the alimony payments because of the plaintiff's cohabitation with Mr. Bowers. On 7 August 2000, plaintiff filed a complaint alleging breach of contract and seeking damages, specific performance, attorneys' fees, a temporary restraining order and a preliminary injunction. In his answer, defendant denied any breach and further pled plaintiff's cohabitation as a bar to alimony after June 2000, as allowed by the separation agreement. The trial court denied plaintiff's claims in an order entered 20 September 2001. Plaintiff appeals.
Plaintiff contends that the trial court erred as a matter of law in concluding that plaintiff had cohabited as defined in N.C. Gen.Stat. § 50-16.9. The parties' separation agreement allowed defendant to stop paying plaintiff alimony upon the occurrence of any one of several events, including "cohabitation by Wife, as that term is defined in N.C.G.S. § 50-16.9." N.C. Gen.Stat. § 50-16.9(b) says:
As used in this subsection, cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation 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. Nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes.
N.C. Gen.Stat. § 50-16.9(b) (2001). Plaintiff argues that the trial court did not properly apply this statute, because it relied on findings that merely evidenced a dating relationship between plaintiff and Parker Bowers. We disagree.
Plaintiff's argument focuses on statutory language from the first sentence, "dwelling together continuously and habitually." Plaintiff discounts that the statute's second sentence provides that cohabitation is evidenced by certain acts. N.C. Gen.Stat. § 50-16.9(b). "The rules of statutory construction require presumptions that the legislature inserted every part of a provision for a purpose and that no part is redundant." Hall v. Simmons, 329 N.C. 779, 784, 407 S.E.2d 816, 818 (1991). N.C. Gen.Stat. § 50-16.9(b) clearly says that cohabitation 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." N.C. Gen.Stat. § 50-16.9(b). In order for the trial court to conclude that cohabitation has occurred, it should make findings that the type of acts included in the statute were present.
While we conclude that the trial court applied the correct standard, its conclusions based on that standard must still be supported by adequate findings of fact. Here, the trial court's order lacks adequate findings of fact to support a conclusion of cohabitation because the findings were mere recitations of testimony and evidence. N.C. Gen.Stat. § 1A-1, Rule 52(a)(1) requires that "[i]n all actions tried upon the facts without a jury ..., the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." N.C. Gen.Stat. § 1A-1, Rule 52(a)(1) (2001). This Court has found that findings that merely recapitulate the testimony or recite what witnesses have said do not meet the standard set by the rule. Chloride, Inc. v. Honeycutt, 71 N.C.App. 805, 323 S.E.2d 368 (1984). Here, the trial court made several findings similar to the following:
These findings are inadequate as they are `mere recitations of the evidence and do not reflect the processes of logical reasoning." Williamson v. Williamson, 140 N.C.App. 362, 364, 536 S.E.2d 337, 339 (2000). As the findings of fact regarding cohabitation are inadequate, the conclusions of law that the plaintiff cohabited and that the defendant was relieved from paying alimony cannot stand. Accordingly, we reverse and remand to the trial court for further findings of fact consistent with this opinion.
Plaintiff also argues that the trial court erred in concluding that defendant had not breached the separation agreement with regard to the "no interference" provision of the agreement. Separation agreements that have not been incorporated into a divorce judgment are governed by general contract principles and are enforceable and modifiable only under such principles. Jones v. Jones, 144 N.C.App. 595, 548 S.E.2d 565 (2001). The elements of breach of contract are (1) the existence of a valid contract and (2) breach of the terms of the contract. Poor v. Hill, 138 N.C.App. 19, 26, 530 S.E.2d 838, 843 (2000). In order for a breach of contract to be actionable it must be a material breach, one that substantially...
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