The purpose of postseparation support is to ensure "subsistence for the [dependent spouse] during the period of separation." Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 251 (1953) (citing Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863 (1922)). As a result, whenever there is a "reconciliation and resumption of marital relations in the home, the necessity for [such support] ceases[,]" so that "an allowance for temporary alimony falls "upon the "reconciliation between husband and wife who have been living apart."
Other States (and one Canadian province), in the few instances where the question has arisen, have taken differing views. See, for example, Hester v. Hester, 79 S.E.2d 248 (N.C. 1953), O'Hara v. O'Hara, 266 S.E.2d 59 (N.C. App. 1980), Lund v. Lund, 315 P.2d 856 (Utah 1957), and Patterson v. Patterson, 4 DLR 793 (Ontario S.C. 1928), suggesting that the support order is not revived, and Justice v. Justice, 108 N.E.2d 874 (Ohio Comm. Pl. 1952), Atkinson v. Atkinson, 170 So. 198 (Ala. 1936), and McIlroy v. McIlroy, 94 N.E. 696 (Mass. 1911), expressing the view that it does revive.
Atkinson v. Atkinson, 233 Ala. 125, 170 So. 198, 200 (1936); McIlroy v. McIlroy, 208 Mass. 458, 94 N.E. 696 (1911); Justice v. Justice, 108 N.E.2d 874, 876 (Ohio Comm. Pl. 1952). Other cases reject the theory, taking the position that an alimony decree is not revived by a second separation following the reconciliation, and that a new application to the court is necessary. Brown v. Brown, 210 Ga. 233, 78 S.E.2d 516, 518 (1953); Moody v. Moody, 227 La. 134, 78 So.2d 536, 537 (1955); Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248 (1953); O'Hara v. O'Hara, 46 N.C. App. 819, 266 S.E.2d 59 (1980); Tiffin v. Tiffin, 2 Binn. 202 (Pa. 1809); M'Karracher v. M'Karracher, supra, 3 Yeates 56; Hill v. Hill, 62 Pa. Super. 439 (1916); Lund v. Lund, 6 Utah 2d 425, 315 P.2d 856, 858 (1957); Patterson v. Patterson, 4 D.L.R. 793 (Ont. 1928). See also Hawn v. Hawn, 505 S.W.2d 459, 463 (Mo. App. 1974) (holding, on the facts, that there was no reconciliation but only an "attempted" reconciliation, and reserving the question of revival of the alimony award if there had been a bona fide reconciliation).
Certainly it would destroy the status which, in the beginning, gave the court jurisdiction to issue the writ under G.S. 17-39. See Hester v. Hester, 239 N.C. 97, 78 S.E.2d 248. We need not, however, pick our way through the procedural quicksands to reach that problem because, in limine, we are here confronted by this question: Was the custody jurisdiction which the Superior Court of Stanly County had previously acquired under G.S. 17-39 ousted by the institution of the divorce action in the Superior Court of Wilson County?
In our view, these allegations do not constitute a sufficient plea of adultery on the part of the wife to bar her right to alimony or to require a denial by the wife or to present an issue for determination by the court on plaintiff's motion for alimony and counsel fees pendente lite. No evidence was offered by defendant to support his said allegations. As to plaintiff's procedure by filing amended complaint herein, see Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248. Defendant having failed to show any sufficient ground to disturb it, Judge Parker's interlocutory order of June 28, 1962, is affirmed.
Ruffin, C.J., said for the Court in Rogers v. Vines, 28 N.C. 293: "Now, `alimony' in its legal sense may be defined to be that proportion of the husband's estate which is judicially allowed and allotted to a wife for her subsistence and livelihood during the period of their separation." This has been quoted with approval in Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248, and in Taylor v. Taylor, 93 N.C. 418. The divorce judgment recites, "by consent of the plaintiff, IT IS FURTHER ORDERED AND DECREED that the plaintiff shall pay to the defendant each, every and all the payments specified in the aforesaid agreement dated January 19, 1951."
The death of either spouse warrants automatic termination. Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 251 (1953). Likewise, remarriage of the dependent spouse automatically terminates the supporting spouse's alimony obligation.
Defendant's appeal, therefore, rests upon the determination of whether the parties had reconciled and resumed their marital cohabitation. "Where such a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated." Hand v. Hand, 46 N.C. App. 82, 85, 264 S.E.2d 597, 598, disc. rev. denied, 300 N.C. 556, 270 S.E.2d 107 (1980); Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). When the evidence is conflicting, "[t]he issue of the parties' mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation."
Resumption of the marital relationship after an award of alimony pendente lite voids the award. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953); Pennington v. Pennington, 42 N.C. App. 83, 255 S.E.2d 569 (1979). Resumption of the marital relationship likewise voids an award of permanent alimony.
WEBB, Judge. We believe we are governed by the case of Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). That case involved an action for alimony without divorce.