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.
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."
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?
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).
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. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953); 2 Lee, North Carolina Family Law, 200 (3rd ed. 1963), p. 420. In In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541 (1976), our Supreme Court held that when separated spouses who have executed a separation agreement resume living together, they hold themselves out as man and wife in the ordinary meaning of that phase, and irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinds their separation agreement insofar as it has not been executed; and further, a subsequent separation will not revive the agreement.
In its nature, then, it is a provision for a wife separated from her husband, and it cannot continue after reconciliation or the death of either party . . . . " Quoted with approval by Chief Justice Devin in Hester v. Hester, 239 N.C. 97, 100, 79 S.E.2d 248, 250 (1953). In Crews v. Crews, 175 N.C. 168, 173, 95 S.E. 149, 152 (1918), the Supreme Court said: " . . . Growing out of the obligation of the husband to properly support his wife, it [alimony] is not allowed with us as a matter of statutory right in divorces a vinculo.
Some cases hold that reconciliation terminates obligations under a separate maintenance decree, so that upon a later separation the wife may not enforce the decree but must bring a new suit. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). See also 35 A.L.R.2d 707, 743 (1954).
In the normal situation, a separation agreement or a consent judgment incorporates provisions for periodic alimony payments and child support, which by their very nature remain executory from period to period and may be abrogated upon reconciliation. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). A provision for support is sometimes fully executed before the reconciliation, as where the husband pays money in a lump sum for support and maintenance in return for the wife's release of all future claims.
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.
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.