Murphy v. Murphy

• Decision Date: 14 July 1978
• Docket Number: No. 37,37
• Citation: 245 S.E.2d 693,295 N.C. 390
• Court: North Carolina Supreme Court
• Parties: Wendell Holmes MURPHY, Sr. v. Emily Wynelle MURPHY.

Page 693

245 S.E.2d 693

295 N.C. 390

Wendell Holmes MURPHY, Sr. v. Emily Wynelle MURPHY.

No. 37.

Supreme Court of North Carolina.

July 14, 1978.

Vance B. Gavin, Russell J. Lanier, Jr., and William E. Craft, Kenansville, for plaintiff-appellee.

Kornegay & Rice, by George R. Kornegay, Jr. and Robert T. Rice, Mount Olive, for defendant-appellant.

SHARP, Chief Justice.

Defendant's evidence on the first issue, which the trial judge deemed sufficient to go to the jury on the question whether the separation agreement was obtained by plaintiff's fraud or undue influence, is sufficiently set out and discussed in the opinion of the Court of Appeals. We affirm that Court's decision that the judge committed no prejudicial error in his rulings and instructions on the first issue and that the evidence supports the jury's verdict on that issue. However, defendant's assignment of error No. 10, which challenges the judge's instruction on the second issue, must be sustained for the reasons hereinafter set out.

Defendant's testimony with reference to the relationship between plaintiff and herself after the execution of their separation agreement is summarized and quoted below:

After March 1972 defendant lived in a trailer in Chinquapin and plaintiff lived in a trailer behind the office of Murphy Mills Company. "Within the immediate year after the separation agreement," plaintiff called her "many times" asking her to come to his trailer, which she did. On most of those occasions they discussed "getting back together." Defendant testified, "On some of those occasions he did ask me to go to bed with him. . . . I went to bed with him at the trailer after the separation agreement and had intercourse with him numerous times. I don't really know (how many times)." Plaintiff also went to defendant's trailer "a couple of times after the separation agreement." On those occasions they talked about getting back together and she had "sexual relations with him." Several times she stayed with him at his trailer "practically all night and left early in the morning." During all this time they were still talking about getting back together.

Defendant further testified that after March 1972 she and plaintiff engaged in sexual intercourse at places other than their respective trailers. They "had sex" at their "place at the beach," and defendant once came to Kenansville while she was there working at the Farm Bureau office.

Under the terms of the separation agreement the parties' children spent alternate weekends together with first one parent and then the other. Defendant said that it was on some of those occasions when they "would alternate the children" that they had sexual relations. However, she also testified, "We engaged in sexual intercourse on other occasions when not transporting the children from home to home. I didn't count the number of times I engaged in intercourse with him altogether from the execution of the deed of separation. I would not even venture a guess, numerous times. I am sure more than a dozen times. Certainly at least two dozen, probably more."

Defendant began attending Campbell College at Buies Creek in January of 1973 and remained there for a year and a half. During that time plaintiff visited her in her trailer where they had sex on more than one occasion. Defendant testified that the last time they had intercourse was at Buies Creek in the spring of 1973. On that occasion they "discussed getting back together." She testified, however, "He told me that he loved me, that he always would, but there was no way to go back. He told me that on other occasions prior to then."

In his testimony plaintiff readily admitted that after the execution of the separation agreement he had engaged in sexual intercourse with his wife. When asked to what extent, he replied, "Several instances, not nearly as numerous as she suggested, but there were instances." He estimated "six or eight times," and said: "It was always when I carried on an exchange of the children. . . . I did not ever agree with her we would resume the marital relation. I always told her there was no way under the circumstances we could resume our relationship. I did not ever move any of my clothes into her house. She did not ever move any of her clothes or belongings into my house."

Plaintiff testified on cross-examination that he left his wife in January of 1972 on the day her car remained parked from early morning until 9:00 p. m. in the yard of one Milton Parker. This one issue, he said, "is what our marital differences had been about over this whole period of time (the six-eight months before the separation) . . . ." When asked about his continued sexual relations with his wife after the execution of the separation agreement and when he knew "there was no way under the circumstances" that they could ever resume the marital relationship, plaintiff offered this explanation: "Wynelle and I had lived together nearly 14 years as husband and wife."

In response to questions about his visits to defendant at Buies Creek, plaintiff did not specifically recall going to defendant's trailer in April of 1973. However, he did say, "I went many times. I very well could have. I said I did (engage in sexual intercourse) as many as a half dozen times, as many as eight at her trailer at Buies Creek or at the trailer behind the office, the mill. We did have sexual intercourse six or eight times."

The second issue submitted to the jury posed the question whether the subsequent acts and conduct of the parties terminated their separation agreement of 4 March 1972.

It is established law that a separation agreement between husband and wife is terminated, insofar as it remains executory, upon their resumption of the marital relation. In re Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976). In Adamee, supra, we held that when separated spouses have executed a separation agreement and thereafter resume living together in the same fashion as before their separation, in contemplation of law their action amounts to a resumption of marital cohabitation which rescinds their separation agreement. This is true irrespective of whether they had resumed sexual relations. Id. at 393, 230 S.E.2d at 546.

The question now before us is whether a husband and wife who, after having executed a separation agreement and established separate abodes, continue to engage in sexual intercourse from time to time thereby rescind the agreement. Defendant's assignment of error No. 10 challenges the following instructions which the judge gave the jury on the second issue with reference to this specific question:

"Now in this connection I charge you that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew the marital relations, the agreement is terminated for every purpose insofar as it remains executory. And the words 'become reconciled and renew their marital relations' means not just a mere reconciliation or making up of the parties, but it means renewal and resumption of the marital relations, and this would require something more than sexual intercourse alone. It's essential that there be a mutual intent to resume cohabitation. The word cohabitation in our law means something more than sexual intercourse between the parties. Cohabitation ordinarily contemplates establishment of a home in which the parties live in the married relationship, normal relationship of husband and wife." (Emphasis added.)

And finally the trial judge charged, "Now here, the burden of proof is also on Mrs. Murphy to show you by the greater weight of the evidence that not only did they have sex together after the separation agreement, but that there was a mutual intent on the part of both to reconcile and resume their cohabitation."

The foregoing instructions find support in two prior decisions of the Court of Appeals, Cooke v. Cooke, 34 N.C.App. 124, 237 S.E.2d 323 (1977), and Newton v. Williams, 25 N.C.App. 527, 214 S.E.2d 285 (1975). In both these decisions the court held that mere proof of "isolated" or "mere casual acts of sexual intercourse" did not establish reconciliation and the resumption of marital relations. In reaching this conclusion the Court of Appeals relied upon the following statement in 1 R. Lee, North Carolina Family Law § 35, at 153 (3d ed. 1963): "Mere proof that isolated acts of sexual intercourse have taken place between the parties is not conclusive evidence of a reconciliation and resumption of cohabitation. There must ordinarily appear that the parties have established a home and that they are living in it in the normal relationship of husband and wife." ¹ See also 2 R. Lee, North Carolina Family Law § 200 (3d ed. 1963).

That the foregoing statement is the general rule may be inferred from the decisions collected in the following annotations and the supplemental case services: Annot., 40 A.L.R. 1227 (1926); Annot., 35 A.L.R.2d 707 (1954). However, this rule be it "general" or limited is not the law in North Carolina. The rule in this State was clearly enunciated by Justice Brogden, speaking for the Court in 1932 in the case of State v. Gossett, 203 N.C. 641, 166 S.E. 754. This case is cited in 42 C.J.S. Husband and Wife § 601 at 186 (1975), as authority contrary to the general rule that "mere casual acts of sexual intercourse are not conclusive evidence that the parties have ceased to live separate within the meaning of a separation agreement." In Gossett, the defendant was indicted for the abandonment and nonsupport of his wife. At the trial the defendant contended that by executing a separation agreement his wife had released him from any obligation to support her. The wife testified, however, that after the separation agreement was signed her husband had visited her and they had engaged in sexual intercourse on each occasion. The number of times the defendant visited his wife is not disclosed in the opinion.

In pertinent part, Judge Thomas...