Smallwood v. Smallwood

• Decision Date: 21 May 2013
• Docket Number: No. COA12–1229.,COA12–1229.
• Citation: 742 S.E.2d 814
• Parties: Sherry Crenshaw SMALLWOOD, Plaintiff, v. James Steven SMALLWOOD, Defendant.
• Court: North Carolina Court of Appeals

742 S.E.2d 814

Sherry Crenshaw SMALLWOOD, Plaintiff,

v.James Steven SMALLWOOD, Defendant.

No. COA12–1229.

Court of Appeals of North Carolina.

May 21, 2013.

Appeal by defendant from orders entered 8 February 2012 and 30 April 2012 by Judge Kathryn Whitaker Overby in Alamance County District Court. Heard in the Court of Appeals 12 February 2013.

Walker & Bullard, P.A., Gibsonville, by Daniel S. Bullard, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, PA, Burlington, by J. Wade Harrison, Hillary D. Whitaker, and Pamela S. Duffy, for defendant-appellant.

DAVIS, Judge.

James Steven Smallwood (“defendant”) appeals from orders awarding Sherry Crenshaw Smallwood (“plaintiff”) alimony and retroactive alimony. After careful review, we affirm both orders.

Factual Background

Plaintiff and defendant were married on 6 December 1991. During their marriage, the couple had one child. The parties separated on 3 April 2009, and plaintiff filed a complaint on 17 November 2009 for child custody and support, postseparation support, alimony, equitable distribution, divorce, and attorney's fees. Defendant filed an answer, counterclaiming for child custody, child support, equitable distribution, and divorce.

The trial court entered a consent order on 16 February 2010 in which it ordered defendantto pay postseparation support and child support. The trial court subsequently approved the parties' parenting agreement, resolving outstanding issues regarding child custody. In a separate action, the parties were divorced by judgment entered 9 September 2010. The court issued an equitable distribution order on 16 December 2011.

The trial court conducted an evidentiary hearing on the alimony claim on 29 November 2011. During the proceedings, defendant moved to amend his answer to add the defense of cohabitation, and the motion was allowed. In an order entered 8 February 2012, the trial court concluded that plaintiff and the man she was dating, Ronald Robinson (“Robinson”), were not cohabitating and that plaintiff was entitled to alimony in the amount of $4,000 per month.

Plaintiff subsequently moved to have the trial court hear her claims for retroactive alimony, retroactive child support, prospective child support, and attorney's fees. Defendant also filed a motion requesting that the court amend its alimony order to include additional findings. After holding a hearing on the parties' motions, the trial court entered an order on 30 April 2012 in which it ordered defendant to pay retroactive alimony and child support. The court denied defendant's motion to amend and ruled that the parties were responsible for their own attorney's fees. Defendant timely appealed to this Court from the trial court's 8 February 2012 and 30 April 2012 orders.

Analysis

I. 8 February 2012 Order

A. Challenge to Finding of Non–Cohabitation

Defendant's primary argument on appeal is that the trial court erred in determining that plaintiff and Robinson were not cohabitating. “[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.” Oakley v. Oakley, 165 N.C.App. 859, 861, 599 S.E.2d 925, 927 (2004) (citation and quotation marks omitted). Evidentiary issues concerning credibility, contradictions, and discrepancies are for the trial court—as the fact-finder—to resolve and, therefore, the trial court's findings of fact are conclusive on appeal if there is competent evidence to support them despite the existence of evidence that might support a contrary finding. Hand v. Hand, 46 N.C.App. 82, 87, 264 S.E.2d 597, 599–600,disc. review denied,300 N.C. 556, 270 S.E.2d 107 (1980). The trial court's conclusions of law, however, are reviewed de novo on appeal. Casella v. Alden, 200 N.C.App. 24, 28, 682 S.E.2d 455, 459 (2009).

Section 50–16.9(b) of the General Statutes provides in pertinent part that “[i]f a dependent spouse who is receiving postseparation support or alimony from a supporting spouse under a judgment or order of a court of this State remarries or engages in cohabitation, the postseparation support or alimony shall terminate.” N.C. Gen.Stat. § 50–16.9(b) (2011). The statute defines “cohabitation” as

the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, 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).

This Court has stated the following with regard to the legislative policy underlying § 50–16.9(b):

“The statute reflects several of the goals of the ‘live-in lover statutes,’ terminating alimony in relationships that probably have an economic impact, preventing a recipient from avoiding in bad faith the termination that would occur at remarriage, but not the goal of imposing some kind of sexual fidelity on the recipient as the condition of continued alimony. The first sentence reflects the goal of terminating alimony in a relationship that probably has an economic impact. ‘Continuous and habitual’ connotes a relationship of some duration and suggests that the relationship must be exclusive and monogamous as well. All of these factors increase the likelihood that the relationship has an economic impact on the recipient spouse.”

Craddock v. Craddock, 188 N.C.App. 806, 810, 656 S.E.2d 716, 719 (2008) (quoting 2 Suzanne Reynolds, Lee's North Carolina Family Law § 9.85, at 493–94 (5th ed.1999)) [hereinafter Lee's Family Law ].

Professor Reynolds goes on to explain:

The second sentence also tries to terminate postseparation support and alimony when the relationship has an economic effect and when someone is acting in bad faith to avoid termination. The more “rights, duties, and obligations” that characterize the relationship, the more likely it is that the relationship has economic repercussions. At least for the heterosexual relationship, the more indicia of “marital rights, duties, and obligations,” the more chance that the decision not to marry is motivated only by a desire to continue receiving alimony.

Lee's Family Law § 9.85, at 494.

Our Supreme Court has held that, in light of the wording of § 50–16.9(b), in order to “find cohabitation, there must be evidence of: (1) a ‘dwelling together continuously and habitually’ of two adults and (2) a ‘voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people.’ ” Bird v. Bird, 363 N.C. 774, 779–80, 688 S.E.2d 420, 423 (2010) (quoting N.C. Gen.Stat. § 50–16.9(b)).

Here, the trial court made the following findings on the issue of cohabitation:

15. The plaintiff is dating Ronald Robinson. The plaintiff started dating Mr. Robinson after the date of separation. The plaintiff and Mr. Robinson started a sexual relationship in February 2011. Mr. Robinson has his own residence at 100 Rosemont Street, which is within walking distance to the plaintiff's residence.

16. Mr. Robinson spends the night with the plaintiff five to seven times each week. He does not keep clothes at the plaintiff's residence. Mr. Robinson does not keep a toothbrush at the plaintiff's residence. Mr. Robinson does not keep medicine at the plaintiff's residence.

17. The plaintiff has given Mr. Robinson, her mother and her friend Karen keys to her residence. The Plaintiff has let Mr. Robinson use her garage door opener on occasion, but not on a regular basis and Mr. Robinson does not keep the garage door opener.

18. Mr. Robinson does not pay any expenses for the plaintiff's residence. Mr. Robinson and the plaintiff do not exchange gifts with each other. Mr. Robinson and the plaintiff are not engaged to be married.

19. Mr. Robinson does not shower or bathe at the plaintiff's residence.

20. Mr. Robinson has helped the plaintiff fix meals at her residence. Mr. Robinson eats meals at the plaintiff's residence. Mr. Robinson often brings his own food to the plaintiff's residence; he has to have gluten free groceries. He has helped the plaintiff with the dishes and cleaning the kitchen after meals that he participated in.

21. Mr. Robinson and the plaintiff go out to eat several times a week. Sometimes Mr. Robinson will pay for the meal.

22. Mr. Robinson has fed the plaintiff's dogs and let the dogs out into the back yard. Mr. Robinson has helped the plaintiff fix her broken fence in the back yard one time. Mr. Robinson has mowed the grass at the plaintiff's residence, if the plaintiff does not have time to mow. Mr. Robinson has brought in the mail for the plaintiff a few times. Mr. Robinson has taken out the plaintiff's trash and recycling a few times.

23. Mr. Robinson does not do his or the plaintiff's laundry at the plaintiff's residence.

24. Mr. Robinson does not vacuum at the plaintiff's residence. The plaintiff vacuums her residence.

25. Mr. Robinson does visit the plaintiff at her place of employment.

26. Mr. Robinson and the plaintiff do attend church together.

27. Mr. Robinson and the plaintiff have been on one over night [sic] trip together, for the minor child's participation in a skate boarding [sic] event in the North Carolina Mountains, which was with a larger group that was also participating in the skate boarding [sic] event.

28. Mr. Robinson and the plaintiff do not refer to each other as husband and wife. Mr. Robinson and the plaintiff do kiss each other goodbye when they leave each other.

In its order, the trial court did not include a conclusion of law specifically stating that, based on its findings, plaintiff was not engaged in cohabitation. The order does, however, contain a finding that “[p]laintiff and Mr. Robinson have not both voluntarily assumed marital rights, duties and obligations that are usually...