North Carolina New Hanover County Bed And Board Divorce Alimony Sexual Intercourse Adultery Lawyers Attorneys

MARY LEE COOMBS, Plaintiff, v

MARY LEE COOMBS, Plaintiff, v. LEE ROY COOMBS, Defendant.

COURT OF APPEALS OF NORTH CAROLINA

March 1, 1995, Heard In The Court Of Appeals

March 5, 1996, Filed

Mary Lee Coombs and Lee Roy Coombs were married 7 April 1964. On 12 January 1993, plaintiff filed the instant action, seeking divorce from bed and board as well as temporary and permanent alimony.

Following a hearing, the trial court entered an order 14 April 1993. The court found defendant had committed acts of adultery and physical abuse against plaintiff and their minor children, granted plaintiff divorce from bed and board, and directed that defendant pay $ 1,400.00 per month in alimony pendente lite. On 22 March 1994, defendant moved for summary judgment on the issue of permanent alimony. Defendant asserted, plaintiff was barred from receiving permanent alimony on the basis of her own adulterous activity. Plaintiff's response admitted she had engaged in sexual relations with a third party subsequent to entry of the divorce from bed and board, but denied any adulterous conduct prior to that date. On 31 March 1994, the trial court entered an order granting defendant's motion for summary judgment. Plaintiff wife appealed an order from the New Hanover County District Court North Carolina.

Issue:

Whether sexual intercourse by plaintiff with a third party subsequent to a decree granting her divorce from bed and board operated to bar plaintiff's claim for permanent alimony?

The Court observed that "until the State grants the parties an absolute divorce, a couple, though separated from each other, continues to be wife and husband." It is for this reason that N.C. Gen. Stat. Sec. 50-16.2 (1987), which sets down the fault grounds for alimony, does not distinguish between pre-separation and post-separation adultery. This Court does not view the failure of the General Assembly to differentiate between these time periods to be an oversight. Rather, defining adultery so as to include any act of voluntary sexual intercourse between a spouse and a third party the former's separation from the other spouse notwithstanding is consistent with this State's policy favoring reconciliation. Accordingly, the voluntary sexual intercourse by a spouse with a third party during the parties' period of separation constitutes adultery as contemplated by N.C.G.S. 50-16.2(1) and is thus grounds for alimony. Hence this Court reasoned that a divorce from bed and board was a limited divorce and consisted of nothing more than a judicial separation which suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond. Thus, the court ruled, sexual intercourse with a third party by either partner constituted adultery even after a decree of divorce from bed and board has been entered. The wife's adultery barred her claim, pursuant to N.C. Gen. Stat. 50-16.6(a) (1987).

Conclusion:

The court affirmed an order that granted the husband summary judgment and denied the wife's claim for permanent alimony

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina New Hanover County Bed And Board Divorce Alimony Sexual Intercourse Adultery Lawyers Attorneys

By: Atchuthan Sriskandarajah

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