Higgins v. Higgins

THE 482 IN SUPREME COURT

Higgins Higgins W. W. HIGGINS JOANNE HIGGINS LARRY N. HIGGINS v. JOANNE and LARRY N. HIGGINS No. 486A87 1988) (Filed February living sepa- separation agreement property §Wife 12— Husband and settlement — — relations rate and —effect separation agreement required provision which the wife to transfer A of a con- in marital residence if the “lived husband her interest to the tinuously separate apart” date of a full after the parties engaged in sexual intercourse enforceable where was not “separate one-year period, and wife do not live since husband they if relations. have sexual Frye concurring in result. Justice joins concurring opinion. in this

Justice Martin Meyer dissenting. Justice joins dissenting opinion. in this

Justice Whichard dissenting. Whichard 7A-30(2) N. by Larry Higgins pursuant to N.C.G.S. § APPEAL Appeals panel a divided Court opinion from an Heard in Supreme Court N.C. App. 1987. 9 December were married on appellee-wife

Appellant-husband of 1983. The ex- 1979 and November separated March pur- on 13 December which ecuted by the part, to distribute the marital owned ported, 50-20(d). to N.C.G.S. parties pursuant concerns Para- dispute The basis of before Court reads and Deed of which graph “Agreement Separation,” of this follows: part as and lot located at agreed that residence It Carolina, Drive, Greensboro, remain North shall Edgewater N. Larry Higgins Higgins and JoAnne name titled Agreement date of one from the of this period have lived agreed Mrs. in that event period apart for full and lot to shall her interest the residence transfer IN THE Mr. Higgins as of part property provided settlement here- in. Mr. Higgins and Mrs. a agreed upon division of all their personal property and Mrs. Higgins agrees to remove all personal the that she shall be entitled to from the residence located at Drive Edgewater within reasonable time after execution of this (Emphasis added.) This agreement also contained releases mutual of property rights and a waiver equitable distribution.

In December one after the separa- execution of the tion agreement, asked appellant appellee to transfer her him, interest in the marital residence in conformity to. with the so, fourth paragraph. When she refused do he an ac- brought for a declaratory tion judgment, asking the court to order the ap- pellee comply with the terms of four. In paragraph response, the appellee brought an for action absolute divorce and equita- for ble distribution of the marital residence and personal certain The property. two were actions consolidated hearing for and Mrs. Higgins made a summary motion for judgment.

The papers submitted the appellee at the hearing on the summary motion for judgment showed the following: The appellee moved out of the marital residence upon execution of the separa- tion parties ceased living together at that However, time. during the one period following execution of agreement, parties traveled to Tennessee and Florida shows, together to attend car and t-shirt shows. At each of the parties shared a motel up days. room for to four In each of instances, these engaged in one or more acts of sexual intercourse. Appellee also attended the funeral of appellant’s brother with appellant March driving to and from the funeral with appellant and sharing room with him on that occa- nights. sion for two

Over the course of the remainder of appellant appellee attended several together. They events took their daughter to the February circus in and the appellee took appellant to the hospital for minor surgery March of the events, year. same During the course of these engaged in several acts of sexual intercourse. times, number admitted disputing while appellant, during with his wife this time period. intercourse

engaging together also at least two in the former mari- spent nights one-year separation. residence tal granted appellee’s motion for district court action. The Court judgment appellant’s Ap- dismissed Mr. Higgins appealed affirmed with dissent. to this Court. peals Hatfield, Hatfield, K. by Kathryn & plaintiff-ap- Hatfield pellee. Parks, Parks, Clifford, by Joy Clendenin & McNairy, R. appellant. defendant

WEBB, Justice. on appeal depends interpretation The of this the resolution “if parties of the the have lived continuous- agreement the words (one year). that full It is undis- ly apart period” and for separate in engaged during sexual intercourse that parties that puted separate If are not and live and ambiguous these words to period. may engage means not sexual intercourse apart parties summary was period, properly granted that during judgment required We believe that we are to hold under Mur- appellee. (1978) 390, 245 S.E. 2d 693 and State v. v. N.C. Murphy, phy (1932), Gossett, 641, 166 S.E. are that the words not N.C. did not live and ambiguous parties separate and the In signed. after the was Mur- agreement apart an brought ground action for divorce on the plaintiff phy, A year’s separation. signed had been one action to set it parties brought and the defendant cross We was first. held it was error for aside. cross action tried it took more than sexual charge jury district that court In relationship. to resume the marital for the intercourse Gossett, his was wife. prosecuted nonsupport the defendant signed sep- he and his wife had ground He defended on the that duty support her. which relieved him of the agreement aration jury in a in which the told charge found no error This Court into an which they agreement entered if found the and the defendant visited separate apart and they agreed her, they had intercourse with wife on several occasions and his validity. if it of no agreement were separation should treat THE IN and Gossett hold that sexual is all intercourse an agreement takes to void in which the agree to live sep- and arate We believe cases hold apart. precise these there is a meaning to “living and husband wife do live separate they not sexual relations. The words as used agreement are this case ambiguous. contingency upon the husband was which to re- ceive the wife’s interest in the did marital residence not occur. The wife was entitled to in her judgment favor. contends appellant dissents in the of Ap Court say peals and this Court this is an agreement pursu drawn 50-20(d) ant N.C.G.S. which an allows agreement dividing § reason, property during the For marriage. says the appel lant, the agreement in this case is enforceable although par had ties relations within one signing Mewborn, agreement. The appellant relies on Love denied, S.E. App. 2d disc. rev. 317 N.C. 347 S.E. (1986) 2d Buffington 69 N.C. Buffington, S.E. 2d 97 We believe our case decision is consistent 50-20(d) with N.C.G.S. as well as Love and Buffington. N.C.G.S. 50-20(d) provides may that married persons provide for division § of marital they while are cohabiting. Love and Buffing- ton hold that such agreements are enforceable under the statute. We do not hold in this case that such an is unenforcea ble. terms of the agreement this case provide for that the defendant the to receive marital home the parties must separate apart and for one parties after the separate. They did not do this and under the terms of the the agreement ap pellant is not to entitled have the conveyed house to him. We do not hold that Murphy governs and separation the agreement is void. We hold do that at the time agreement the was executed Murphy and Gossett had defined “to live separate and apart” a way such that the words meant a husband and wife could have if they intercourse were to live separate and apart. We hold the agreement separation should be enforced according to of these words. meaning a dissents would apply subjective test determine the intent of parties at the time the separation agreement was (1982) Farnsworth, 1 E. made. See 7.9 Contracts for a discussion § of objective subjective and of theories assent. The dissents Higgins v. meaning parties gave have us to search for attempt would normally- which is understanding of the regardless to the words an objective we believe we should use them. In this case given to continuously separate “live test. words attorney Larry have told him the Higgins’ could meaning. definite A agreement signed. words at the time the meaning say be a differ- gave should not allowed to he to a contract party which are not ambiguous. to words meaning ent 52-10.2 which Mur- overrules are advertent N.C.G.S. We statute is October The effective date of that and Love. phy of in the resolution this case. 1987. We not consider it did of of Appeals the Court The decision Affirmed. in result. concurring FRYE lawsuit, husband simple case. The to this

This wife, provided, which in- entered into alia, in their names residence should remain titled ter and fur- agreement the date of one from for a period continuously sepa- if the have lived “that provided ther transfer her full the wife would apart period” for that rate and part her husband as residence to interest 1983. was executed on December agreement This settlement. year following agreement, execution of the the one During Florida, a motel room sharing to Tennessee traveled instances, parties en- days. In each of these to four up They spent acts of sexual intercourse. in one or more gaged residence, two in the former marital together nights least two residence, engaged from away nights together other The hus- intercourse on other occasions. acts of sexual several portion of that enforcement band now seeks prop- to transfer her interest the wife requiring so, they “have he must establish erty him. In order do one period” that full lived granted the wife’s motion The district court year. affirmed. Appeals judgment Court court, Appeals the Court before the trial question above, whether, as stated admitting the facts this Court prove husband can that he and his spouse former “lived continu- ously separate for that full period” as that was used in their separation agreement. (or infamous) Since this Court’s famous decision Murphy (1978), 295 N.C. 245 S.E. 2d 693

Murphy, every divorce law- yer his has worth salt known resumption that the of even casual sexual relations between husband and wife during period separation meant that were living “continuously not separate and term is used in separation agree- ments. This had a clear and unambiguous meaning North Carolina at the time this agreement was executed and unnecessary therefore it is testimony as to what each of them intended when this language was used.

The dissent makes much of the fact that leading commen- tators have criticized the rule of Murphy the rule of has Murphy effectively now been by overruled recent action of however, General Assembly. Such reliance is misplaced, since clear, the meaning of the language in was irrespective of Likewise, whether the commentators liked it or not. the fact that was executed after the enactment of property marital act is also not controlling. The fact that before, separation agreement may be entered into during or after the dissolution of a marriage does prevent the parties from agreeing property that certain will be only transferred if par- “continuously ties live separate and apart” for the stated period Here, of time. the husband agreed to a contract provided which for the only transfer of the a condition precedent was met. This condition has precedent not been met and the husband is not conveyance entitled to a under separation this agreement. only That question decided each of the courts below and each of them I correctly. decided it join therefore majority in voting to affirm.

In view of the I dissenting opinions, would note that Court has not resurrected Murphy, S.E. 2d but simply recognized the any absence of ambiguity in the meaning of the clause in question at the time of the execu- tion of

Justice MARTIN joins in this concurring opinion. IN THE

488

Higgins Higgins Meyer dissenting. Justice

I dissent of Whichard respects concur all the with what I be my concerning perceive but wish to observations to add rules sum- majority’s the of the application governing erroneous mary judgment. majority sepa- concludes that certain from the “if the the question, specifically phrase

ration full have lived for that (one subject year), unambiguous is one reasona- period” but least, says majority, ble case interpretation. For this “continuously and wife interpretation is husband only they engage single not in even a separate and do is act of sexual Because it admitted intercourse. occasion during period

had intercourse on at least one question, majority, of time continues the the trial court’s order summary judgment In granting proper. wife’s motion for fact, disputed per- from fectly least different mean- susceptible plausible to at two jury which a and should have been allowed ings could —either they find as intent when entered reflecting my majority In has separation. opinion, into the contract clearly summary for wife. affirming judgment erred in 56(c) pro-

Rule Rules of Civil Procedure of the North Carolina summary only be where a fore- judgment granted vides that will issue as genuine is no cast of the evidence shows that there as a any party judgment material and that entitled to fact Bradford, 363 289 S.E. 2d law. N.C. matter of (1982); Lowe 56(c) (1983). 1A-1, party moving Rule N.C.G.S. § issue, lack summary any establish triable must judgment hear- proffered all of fact from evidence at the inferences party and in be the movant favor of the against must drawn ing Co., Sears, & N.C. Morrison v. Roebuck the motion. opposing 298, Summary is a harsh and judgment 354 S.E. 2d is perfectly “unless clear that remedy granted to be drastic desira- into the facts is not inquiry issue of is involved no fact Watkins, Dendy clarify law.” application ble added). (1975) 447, (emphasis Most N.C. “if should be denied judgment a motion importantly, evidence.” be drawn from the conclusions can different material Higgins v. 432, 437, Smith, 263 S.E. 2d Credit Union v. (1980). contrary, majority’s Notwithstanding conclusion to the in case bar genuine is indeed a issue of material fact at there — by use namely, just this husband and wife what intended para- “lived in phrase majority disputed separation agreement. four of the graph incorrectly only here concludes could language contested be mean husband wife refrain interpreted to must from even a of single act of intercourse order for the transfer fact, under four forward. In paragraph go language interest by just is ambiguous. used here It could no doubt found, easily example, be for that, these intended the they to mean question, must resume same living together household as husband and event, wife. In that would husband. Where go to the is unclear and are question parties’ intentions doubt, an interpretation jury is under for the proper Systems, instructions from court. Parker Inc. Marking Inc., Industries, 177, 80 341 S.E. 2d Diagraph-Bradley N.C. (1986). 92, denied, 336, disc. rev. N.C. 346 S.E. 2d jury entry case is This for the judgment was improper. the wife joins

Justice WHICHARD in this dissenting opinion. WHICHARD dissenting. majority holding bases its on Murphy, Murphy (1978), N.C. in which this Court held that “sexual a intercourse between husband and wife after the execu- tion of a separation agreement avoids the Murphy, contract.” 245 S.E. 698. 2d at The decision in has been uniformly severely criticized. early An critique stated:

This by by decision supported neither reason nor directly It precedent. conflicts policy with desirable preserving by marriages encouraging attempts reconciliation between separated spouses a who made is a much agreement, it narrower holding than the facts of THE IN demanded, rejects case law devel- inexplicably case and it appeals. the court of oped Law, in North Carolina N.C.L. Survey Developments Sally Professor commenta- Sharp, leading Rev. law, family has observed:

tor on North Carolina useless, what speculate about impossible, It court rule as did in Cer- supreme Murphy. it prompted im- have been court to have tainly would difficult for the from to reconcile and resume marital relations an intent plied An acts of sexual intercourse. to reconcile attempt isolated fully hardly but formed intent. The implied, well be could (or will is that at least one holding party) result of the to reconcile he or she is unsuccess- penalized trying be The conclusion that tends to attempt. ful in that this result inescapable. efforts to reconcile seems inhibit will . . . of intercourse principle single acts [T]he a valid sepa- a reconciliation and therefore rescind constitute should be serious reconsideration. agreement given ration marriage of the state in nor preserving Neither the interest is their contract relying upon the interests of the by rule. present well served Party: S. Divorce and the Third Private Sharp, Spousal Support, (1981). State, 819, 59 841-43 and the N.C.L. Rev. See Agreements, Equita- Ideal: The Development S. The Sharp, Partnership also of Carolina, 195, 204-05n.52 N.C.L. Rev. ble Distribution in North (1987) (refers rule” and Draconian effect of the Murphy to “the Note, . . . problem”); issue remains serious notes that “[t]he Contractual Separation Domestic Relations —Enforcement of Moore, 16 Wake by Agreements Specific Performance —Moore (1980) serves (“[WJhile L. the isolated-acts test Forest Rev. in- efficiency, judicial it undermines the of judicial goal of goal tegrity.”). Gener- critiques these

Perhaps response Murphy, par- Distribution Act that Assembly Equitable provided al for distribution may agreement providing make a written ties N.C.G.S. “[b]efore, during marriage.” or after their property 50-20(d)(1987). the effect Appeals interpreted The has Court § COURT IN THE SUPREME Higgins v. property execute a may now spouses be that section to of this afterwards, time, Buffington any separating without settlement (1984), S.E. 2d App. v. Buffington, reconciliation, necessarily terminated are not such settlements Mewborn, rev. 339 S.E. 2d disc. 79 N.C. Love denied, my cases In view those 317 N.C. in accurately legislative reflect both 50-20(d) correctly decided were public and sound of N.C.G.S. in the enactment tent § settle an may agreement If make policy. spouses agree execution of the after it follows that during marriage, ment ment, have sexual relations or they may together, continue voiding without living apart, while subsequent into here entered agreement 50-20(d).The recites agreement date of N.C.G.S. the effective prop- marital a distribution of it constitutes paragraph Therefore, by the was not voided erty to that statute. pursuant sexual relations. episodic

parties’ holds, is agreement majority If governs, void, majority is immaterial. used therein and the law, incorrect, in stating that under its view of the “[t]he thus interpretation on the depends this appeal resolution of have lived ‘if the agreement words of the ” year] period.’ for that full [one immaterial, interpretation so questions of void arise. do not even consequence legal clear

While established entering separation intercourse after act of sexual single now removed the enactment consequence agreement —a 50-20(d) sig- semantic or give singular legal did not N.C.G.S. nificance, —it intent, and the words “lived from context divorced beyond majority goes and continuously apart.” separate in that it did. holding in holding Murphy actual differing interpretations here to their testified spouses continuously and in con- separate “lived phrase The wife testified: text continuously year’s in a time we lived It meant that I and would the house over. At the separate sign that [my I . . . I thought time the house over that signed husband] I and would divide the interest in far my the house as as marital interest even though it was not stated. That’s how I ... If interpreted paragraph. we lived separate apart. That meant no contact whatsoever. That I I sign my would the house over and would be given marital ... I property. interest was obligated to turn the sex, house over if we had no as far contact as having going anywhere together appearing husband wife. If we had contact, way, had no if he his I my went went sepa- way, rate we did not talk going about back then I together, going house I I sign would be thought [over] my getting part of the house.

She further thought testified that she that if she and her husband , had “sexual spen[t] relations or even ... night together was, voided agreement]. [her], That going living back [the testified, as husband and wife.” The husband contrastingly: Q. you What did think paragraph you meant when signed agreement?

A. I took it that if we’re not living together after the first that she sign would the house over to me.

Q. you . . . you Did think that if had her sex with it would have or anything to do with whether you? obligated sign not she was the house over to A. No.

Q. anybody . . . you Did tell that having sex with her void the might provisions paragraph 4?

A. No. semantics, As a matter of it cannot be that the gainsaid disputed subject to the different and ex- language plausible meanings fact, testimony. pressed foregoing law, be in ambiguous. should Meyer’s

As stated dissent: “Where the doubt, is unclear and the are in question parties’ intentions inter- of an is for pretation agreement jury proper under instruc- IN THE Parker Inc. v. Marking Systems, Diagraph- from the court. tions Inc., Industries, 341 S.E. 2d disc. 80 N.C. Bradley App. (1986).” denied, And, rev. 346 S.E. 2d as stated N.C. Orr’s Judge Appeals: dissent for the Court of law, not, as a [Resumption sexual relations does matter of 50-20(d) Therefore, void a N.C.G.S. to conclude § live because longer separate “no relations, a give phrase resumption beyond and affix meaning agreement the context of this to it meaning reserved for situations other than set- 50-20(d). under N.C.G.S. There is basis in tlement no our § law statutes or case to conclude that the incorporation year” “live phrase separate apart for one into N.C.G.S. 50-20(d) agreement means that sexual will result relations § in conclusion, law, as a matter of no longer apart. intent of the application of this is instead a phrase question by to be decided the trier fact. 513, 520, Higgins, 50-20(d), By Assembly enacting N.C.G.S. the General at- rest, here,

tempted put presented the context “the Dra- conian effect of the rule.” S. Rev. Murphy Sharp, N.C.L. supra, 195, 205 n.52. majority today unfortunately, my view— — resurrects rule and its effect under the of a guise semantic certainty only is in majority fact absent. Not does the resur- demise, rect from a well-deserved process but it beyond stretches I original its effect. find the ma- holding of the jority contrary to express legislative enactment and neither re- quired the statutes and case law nor desirable as a matter of I public policy. respectfully therefore dissent.

Case Details

Case Name: Higgins v. Higgins

Court Name: Supreme Court of North Carolina

Date Published: Feb 3, 1988

Citation: 364 S.E.2d 426

Docket Number: 486A87

Court Abbreviation: N.C.