Sorey v. Sorey , 233 N.C. App. 682 ( 2014 )

NO. COA13-987
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
RODNEY WILSON SOREY,
Plaintiff,
v. Beaufort County
No. 12-CVD-1185
MELISSA LYNN SOREY,
Defendant.
Appeal by defendant from Order entered 13 May 2013 by Judge
Darrell B. Cayton, Jr. in District Court, Beaufort County.
Heard in the Court of Appeals 23 January 2014.
Hassell, Singleton, Mason & Jones, P.A., by Sid Hassell,
Jr., for plaintiff-appellee.
Windy H. Rose, for defendant-appellant.
STROUD, Judge.
Melissa Sorey (“defendant”) appeals from an order entered
13 May 2013 denying her request for post-separation support on
the basis of marital misconduct. We affirm.
I. Background
Rodney Sorey (“plaintiff”) and defendant were married on 11
July 1987 and separated on 27 August 2011. The parties have four
adult children and one minor niece whom they have raised as one
of their children. Plaintiff filed an action for absolute
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divorce in Beaufort County on 28 December 2012. Defendant
answered and raised a counter-claim for post-separation support
and alimony. Plaintiff then replied, alleging that defendant had
committed marital misconduct prior to the date of separation in
that she had “constructively abandoned the Plaintiff by dumping
his clothes on the front porch of his son’s residence and by
repeated illicit liaisons with various men” and that she “has
engaged in illicit sexual behavior during the marriage and
before the separation with other men.”
The trial court held a hearing on the issue of post-
separation support on 29 April 2013. At the hearing, the trial
court took evidence and heard testimony by the parties and two
of their adult sons. By order entered 13 May 2013, the trial
court denied defendant’s request for post-separation support
because it found that defendant had committed two forms of
marital misconduct: illicit sexual behavior and abandonment.
Defendant filed written notice of appeal from the trial court’s
order on 17 May 2013.
II. Appellate Jurisdiction
Defendant appeals from the trial court’s denial of her
motion for post-separation support. Post-separation support
orders are interlocutory. Stephenson v. Stephenson, 55 N.C. App.
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250, 251, 285 S.E.2d 281, 281 (1981). Although orders allowing
post-separation support do not affect a substantial right, see,
e.g., Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319
(1998), that rule does not apply where the dependent spouse’s
request for post-separation support was denied by the trial
court, Mayer v. Mayer, 66 N.C. App. 522, 525, 311 S.E.2d 659,
662, disc. rev. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).
Here, the trial court denied defendant’s request for post-
separation support. Defendant asserts that the trial court’s
order affects a substantial right. Plaintiff does not contend
otherwise. Under Mayer, we hold that the trial court’s order
affects a substantial right and that defendant’s appeal is
properly before this Court.
III. Post-separation Support
A. Standard of Review
In reviewing an order concerning post-separation support we
must consider “whether there was competent evidence to support
the trial court’s findings of fact and whether its conclusions
of law were proper in light of such facts.” Oakley v. Oakley,
165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (citation and
quotation marks omitted). “The trial court’s findings need only
be supported by substantial evidence to be binding on appeal. We
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have defined substantial evidence as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Peltzer v. Peltzer, ___ N.C. App. ___, ___, 732
S.E.2d 357, 359 (citations and quotation marks omitted), disc.
rev. denied, 366 N.C. 417, 735 S.E.2d 186 (2012).
B. Analysis
Defendant argues that the trial court erred in denying her
request for post-separation support because its finding that she
abandoned her husband was unsupported by the evidence. We
disagree.
Post-separation support is “spousal support
to be paid until the earlier of either the
date specified in the order of
postseparation support, or an order awarding
or denying alimony.” N.C. Gen. Stat. § 50–
16.1A(4) (2003). A depend[e]nt spouse is
entitled to post-separation support if the
court finds “the resources of the dependent
spouse are not adequate to meet his or her
reasonable needs and the supporting spouse
has the ability to pay.” N.C. Gen. Stat. §
50–16.2A(c) (2003). Factors such as the
parties’ standard of living, income, income
earning abilities, debt, living expenses and
legal obligations to support other persons
are considered in determining the financial
needs of the parties. N.C. Gen. Stat. § 50–
16.2A(b) (2003). In addition, the judge
shall consider marital misconduct by the
dependent spouse, occurring prior to or on
the date of separation, and also any marital
misconduct by the supporting spouse. N.C.
Gen. Stat. § 50–16.2A(d) (2003). Acts of
“marital misconduct” include sexual acts,
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N.C. Gen. Stat. § 14–27.1(4) (2003),
voluntarily engaged in with someone other
than a spouse, N.C. Gen. Stat. § 50–
16.1A(3)(a) (2003) and “[i]ndignities
rendering the condition of the other spouse
intolerable and life burdensome.” N.C. Gen.
Stat. § 50-16.1A(3)(f)(2003).
Evans v. Evans, 169 N.C. App. 358, 364-65, 610 S.E.2d 264, 270
(2005). If the trial court finds that the dependent spouse
committed marital misconduct, that finding alone may be
sufficient reason for the trial court to conclude the supporting
spouse is not entitled to post-separation support and deny such
a request. Id. at 365, 610 S.E.2d at 270.
One form of marital misconduct is abandonment. N.C. Gen.
Stat. § 50-16.1A(3)(c) (2013). “Abandonment occurs where one
spouse brings the cohabitation to an end (1) without
justification, (2) without consent, and (3) without intention of
renewing the marital relationship.” Hanley v. Hanley, 128 N.C.
App. 54, 56, 493 S.E.2d 337, 338 (1997).
Here, the trial court specifically found that defendant
“abandoned the Plaintiff by discontinuing the marital
cohabitation without just cause or excuse.” The trial court
based its ultimate finding on the following findings:
15. Some time prior to August 27, 2011 the
Plaintiff advised the Defendant that she
wanted them to move to the residence which
she now occupies . . . and the Plaintiff
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told her that he did not wish the family to
move to this location.
16. On August 27, 2011, while the Plaintiff
was at work, the Defendant moved to [the
residence she now occupies], and also moved
the Plaintiff’s clothes to the front porch
and in the front yard of the residence [of
the parties’ son] . . . .
17. The Plaintiff learned of this move
through a phone call from a friend which he
received at work, and he returned to North
Carolina the next day to find his clothes on
the porch and in the front yard of the
[son’s] residence . . . .
18. The Defendant advised the Plaintiff by
telephone that she had decided to move, that
she had found someone else and that she did
not want him anymore.
19. The Plaintiff did not provoke or
condone the actions of the Defendant set
forth above.
Defendant contends that the trial court’s finding of
abandonment was unsupported by competent evidence. She argues
that the actual date she left the marital residence was in
September 2011, after the date of separation, which the trial
court found to be 27 August 2011. She also challenges finding 17
as unsupported by competent evidence. Finally, defendant
contends that because she told plaintiff in advance that she was
moving and plaintiff said he did not want to move with her, he
consented to the separation.
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“When an application is made for postseparation support,
the court may base its award on a verified pleading, affidavit,
or other competent evidence.” N.C. Gen. Stat. § 50-16.8 (2013).
“The trial court is in the best position to weigh the evidence,
determine the credibility of witnesses and the weight to be
given their testimony.” Goodson v. Goodson, 145 N.C. App. 356,
362, 551 S.E.2d 200, 205 (2001) (citation and quotation marks
omitted). “It is elementary that the fact finder may believe
all, none, or only part of a witness’ testimony. In re T.J.C.,
___ N.C. App. ___, ___, 738 S.E.2d 759, 765 (citation, quotation
marks, and brackets omitted), disc. rev. denied, ___ N.C. ___,
743 S.E.2d 194, 194, 642 (2013).
Each of the trial court’s findings of fact was supported by
plaintiff’s testimony at the hearing. Plaintiff testified to the
facts as recited by the trial court. Although there was
conflicting evidence on a number of points and the evidence
regarding the timing of these events was unclear, it is the
trial court’s duty to resolve such conflicts and ambiguity in
its findings. “While contrary inferences might have been drawn
from this same evidence, it was the trial judge’s prerogative to
determine which inferences should be drawn and which inferences
should not be.” In re Estate of Trogdon, 330 N.C. 143, 152, 409
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S.E.2d 897, 902 (1991). The inferences drawn here by the trial
court were reasonable and supported by evidence introduced at
the hearing.
We also disagree with defendant’s assertion that the trial
court’s findings show that plaintiff consented to the
separation. Defendant informed plaintiff that she was moving.
Plaintiff responded that he did not want to move. As a result,
defendant left the marital home, deposited plaintiff’s
belongings at their son’s house, and told plaintiff that she did
not want him anymore. The trial court clearly disbelieved
defendant’s testimony that plaintiff had been abusive, severely
abused alcohol, had engaged in numerous adulterous
relationships, or otherwise behaved in a manner which might
justify defendant’s abandonment of the marital home.
Mere acquiescence in a wrongful and
inevitable separation, which the complaining
spouse could not prevent after reasonable
efforts to preserve the marriage, does not
make the separation voluntary or affect the
right to divorce or alimony. Nor, under such
circumstances, is the innocent party obliged
to protest, to exert physical force or other
importunity to prevent the other party from
leaving.
. . . .
The trial court’s findings are conclusive if
supported by any competent evidence, even
when the record contains evidence to the
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contrary. Moreover, since there is no all-
inclusive definition as to what will justify
abandonment, each case must be determined in
large measure upon its own circumstances.
Hanley, 128 N.C. App. at 57, 493 S.E.2d at 339 (citations and
quotation marks omitted).
Plaintiff was under no obligation to explicitly protest
defendant’s decision to leave the marital home, and his failure
to object does not necessarily constitute consent. Plaintiff
testified, and the trial court found, that he only became aware
that defendant was leaving the marital home while he was away on
work. When he found out, he called her and she informed him that
she no longer wanted him and that she had found someone else.
We conclude that the trial court’s finding that defendant
had abandoned the marital home was supported by competent
evidence. We further conclude that the trial court’s finding
that plaintiff did not consent to defendant’s abandonment was
supported by competent evidence. These findings support the
trial court’s conclusion that defendant had committed marital
misconduct and its ultimate decision to deny defendant post-
separation support. Accordingly, we affirm the trial court’s
order denying defendant’s request for post-separation support.1
1
As the findings on abandonment are sufficient to support the
trial court’s order, we need not address defendant’s arguments
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IV. Conclusion
We affirm the trial court’s order denying defendant post-
separation support because its findings on abandonment are
supported by competent evidence, those findings support its
conclusions of law, and its ultimate decision to deny defendant
post-separation support.
AFFIRMED.
Judges HUNTER, Jr., Robert N. and DILLON concur.
regarding the findings on illicit sexual behavior.