Smallwood v. Smallwood
742 S.E.2d 814
N.C. Ct. App.2013Background
- Married on December 6, 1991; one child; separation on April 3, 2009.
- Plaintiff filed for custody, support, postseparation support, alimony, equitable distribution, divorce, and attorney’s fees in November 2009; defendant answered with counterclaims.
- Consent order in February 2010 required postseparation and child support; parenting plan resolved custody; divorce finalized September 9, 2010.
- Equitable distribution order entered December 16, 2011.
- Alimony hearing held November 29, 2011; court found non-cohabitation in February 2012 alimony order; retroactive alimony and child support awarded in April 2012; orders appealed by defendant.
- Defendant challenges the cohabitation finding, other factual findings, exclusion of private investigator testimony, and retroactive alimony under §50-16.3A; appellate court affirms both orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cohabitation determination under §50-16.9(b). | Smallwood argues court erred by ruling no cohabitation. | Smallwood contends findings support cohabitation. | No; evidence supports non-cohabitation; findings adequate. |
| Sufficiency of findings regarding cohabitation. | Findings show extensive domestic-like conduct. | Some findings may be overbroad or mischaracterized. | Sufficient findings support non-cohabitation; isolated factors do not mandate cohabitation. |
| Subjective intent to cohabit. | Objective evidence suffices to resolve cohabitation without examining subjective intent. | Court should address subjective intent. | Not required here; objective evidence was enough to conclude non-cohabitation. |
| Retroactive alimony under §50-16.3A. | Retrospective award permitted from date of separation. | Current statute does not authorize retroactive alimony. | Authorized; retroactive period can be awarded consistent with prior law. |
| Adequacy of findings for the 30 April 2012 retroactive award. | Two orders read together show entitlement including retroactive period. | Retroactive findings individually insufficient. | Two orders, read together, contain sufficient findings to support retroactive alimony. |
Key Cases Cited
- Bird v. Bird, 363 N.C. 774 (North Carolina Supreme Court, 2010) (cohabitation requires dwelling together and mutual marital rights/obligations)
- Rehm v. Rehm, 104 N.C. App. 490 (North Carolina Court of Appeals, 1991) (isolated factors not controlling; totality of evidence governs cohabitation)
- Oakley v. Oakley, 165 N.C. App. 859 (North Carolina Court of Appeals, 2004) (two methods to prove reconciliation; objective evidence suffices if nonconflicting)
- Fletcher v. Fletcher, 123 N.C. App. 744 (North Carolina Court of Appeals, 1996) (totality of circumstances in determining marital-rights/obligations)
- In re Estate of Mullins, 182 N.C. App. 667 (North Carolina Court of Appeals, 2007) (sufficient findings support conclusions even if some findings erroneous)