Opinion
No. 07-790.
Filed March 18, 2008.
Greene County No. 06CVD171.
Appeal by plaintiff from order and judgment entered 19 December 2006 by Judge Lonnie Carraway in District Court, Greene County. Heard in the Court of Appeals 5 February 2008.
White Allen, P.A., by David J. Fillippeli, Jr., for plaintiff-appellant. Jeffrey L. Miller for defendant-appellee.
This matter arises from the trial court's 19 December 2006 order denying and dismissing Wallace Reynold Garner's complaint for absolute divorce and equitable distribution from his wife, Geraldine Murphy Garner. Mr. Garner now appeals, arguing that the trial court erred because at the time his divorce complaint was filed, he and Ms. Garner had physically separated, he had the intent to live separate and apart from Ms. Garner, and this separation had lasted for more than one year. Because evidence supports the trial court's findings that the parties maintained their marital relationship in the year before the divorce complaint was filed, we uphold the trial court's dismissal of the complaint.
Mr. Garner also asks this Court to find that the trial court erred in finding and concluding that the Garners were not separated at the time of the trial, on 30 October 2006, because this holding "is most problematic . . . as it may preclude [Mr. Garner] from ever obtaining a divorce[.]" We find this argument to be without merit, particularly since more than a year has now passed since the hearing, making the need for such a determination moot. More importantly, we observe that consideration of this argument would be an improper substitute of our appellate review for the fact-finding duties of the trial court.
We note at the outset that, "[w]hen there has been a trial by judge without a jury, the court's findings of fact are conclusive on appeal if there is evidence to support them, even if there is contrary evidence." Lin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 10 (1993) (citing In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900 (1991)). Additionally, "[i]f the evidence allows different inferences to be drawn therefrom, the trial judge determines which inferences shall be allowed, and this determination is binding on the appellate courts." Id., 425 S.E.2d at 10-11 (citation omitted).
North Carolina law provides that a married couple may divorce "on the application of either party, if and when the husband and wife have lived separate and apart for one year" and the party asking for the divorce has resided in the State for a period of six months. N.C. Gen. Stat. § 50-6 (2005). When considering the meaning of "lived separate and apart" within section 50-6, this Court has noted:
It is well-settled that there is no separation where "the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase."
Lin, 108 N.C. App. at 775, 425 S.E.2d at 11 (quoting In re Estate of Adamee, 291 N.C. 386, 392, 230 S.E.2d 541, 546 (1976)). Our Supreme Court has similarly observed that a separation "implies something more than a discontinuance of sexual relations . . . It implies the living apart for such period in such a manner that those in the neighborhood may see that the husband and wife are not living together." Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E.2d 489, 491 (1945) (citations and quotation omitted); see also Ponder v. Ponder, 32 N.C. App. 150, 153-54, 230 S.E.2d 786, 787-88 (1977) (affirming that the parties had not lived separate and apart for one year when, despite occupying separate bedrooms, they lived in the same residence, ate meals together, and family members visited the parties in their residence). One party's "intent to cease cohabitation . . . for the statutory time period . . . is sufficient to grant that party a decree of absolute divorce," even without the other spouse's knowledge of that intent. Smith v. Smith, 151 N.C. App. 130, 132, 564 S.E.2d 591, 592 (2002).
Here, the trial court made extensive, unchallenged findings of fact that describe in detail the regular and ongoing interactions between the Garners over the course of the year prior to Mr. Garner's filing the divorce petition, when they were supposedly separated. The trial court's order and judgment goes through nearly each month of that year, cataloguing both routine events such as family meals and daily phone calls, and notable occasions and get-togethers. Although the Garners did not sleep in the same bed for that time period, or even stay under the same roof, they ate together, shopped together, spent significant time together at home and at social and family gatherings, attended church together, and in all respects appeared to have the same relationship and affection for each other as they had prior to beginning their separate sleeping arrangements.
The sole evidence supporting Mr. Garner's contention that his intent was to live separate and apart from Ms. Garner, was his testimony to that effect at trial, and his consultations with an attorney, including having separation documents drawn up. Regardless of the strength of the evidence, however, the testimony and documents presented at trial allowed different inferences concerning Mr. Garner's intent, inferences that are properly determined by the trial court and binding on this Court. Lin, 108 N.C. App. at 775, 425 S.E.2d at 10-11. As noted by our Supreme Court, "the trial judge is better able than we at the appellate level to gauge the comportment of the parties throughout trial and to discern the sincerity of their responses to difficult questions." Trogdon, 330 N.C. at 148, 409 S.E.2d at 900.
We hold that the trial court's findings were supported by competent evidence. Those findings in turn support the conclusions that "[t]he parties have continued to act and to hold themselves out in public and in private as husband and wife" and that they "continue to have a loving relationship in a manner and with a frequency consistent with their marital, husband-wife relationship." Accordingly, we see no error in the trial court's order and judgment denying the divorce on the grounds that the parties had not been living separate and apart for the one-year statutory period.
Affirmed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).