Newton v. Williams, 7410DC1097

• Decision Date: 07 May 1975
• Docket Number: No. 7410DC1097,7410DC1097
• Citation: 214 S.E.2d 285,25 N.C.App. 527
• Court: North Carolina Court of Appeals
• Parties: Justine Williams NEWTON v. Sanford Ellis WILLIAMS.

Page 285

214 S.E.2d 285

25 N.C.App. 527

Justine Williams NEWTON v. Sanford Ellis WILLIAMS.

No. 7410DC1097.

Court of Appeals of North Carolina.

May 7, 1975.

Jordan, Morris & Hoke by Joseph E. Wall, Raleigh, for plaintiff-appellee.

Brady, Gardner & Wynne by T. Alfred Gardner, Raleigh, for defendant-appellant.

BRITT, Judge.

G.S. § 1A--1, Rule 56, provides for the rendition of summary judgment '. . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . . .' We disagree with the trial court's conclusion in the instant case that no genuine issue as to any material fact was shown and that plaintiff is entitled to judgment as a matter of law.

As stated in plaintiff's brief, we are not concerned in this case with the question of what conduct invalidates a separation and bars a divorce on ground of one-year separation; our inquiry is with respect to conduct that will invalidate the provisions of a separation and Property settlement agreement. While the court was confronted with an executed contract in Jones v. Lewis, 243 N.C 259, 90 S.E.2d 547 (1955), we think the following statement from the opinion by Justice (later Chief Justice) Denny, page 261, 90 S.E.2d page 549, is appropriate here:

It is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose insofar as it remains executory. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; S. v. Gossett, 203 N.C. 641, 166 S.E. 754; Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768; Campbell v. Campbell, 234 N.C. 188, 66 S.E.2d 672.

Without question, the provisions of the agreement which plaintiff seeks to enforce are executory. The question then arises as to whether the parties became reconciled and renewed their marital relations. The effect of the judgment appealed from is to say that the pleadings, affidavits and stipulations established As a matter of law that the parties did not become reconciled and renew their marital relations.

Under the pleadings, affidavits and stipulations offered, we think the question as to whether the parties became reconciled and renewed their marital relations presented a question of fact to be determined at a trial of the action. In 1 Lee, N.C. Family Law (3d ed. 1963), § 35, at 152--53, while the author discusses reconciliation and a resumption of cohabitation in the context of terminating a divorce from bed and board, we think our holding finds support in the following statements:

. . . There may be a reconciliation and resumption of cohabitation with an intention that it shall be a normal and permanent relationship, even though, despite the intention, the relationship lasts only a short time. . . . Mere proof that isolated acts of sexual intercourse have taken place between the parties is not conclusive evidence of a...