Love v. Mewborn , 79 N.C. App. 465 ( 1986 )

339 S.E.2d 487 (1986)

Micki S. Mewborn LOVE
v.
Virgil MEWBORN, III.

No. 8515DC1060.

Court of Appeals of North Carolina.

February 18, 1986.

Wishart, Norris, Henninger & Pittman, P.A. by June K. Allison, Burlington, for plaintiff, appellee.

Vernon, Vernon, Wooten, Brown & Andrews, P.A. by Wiley P. Wooten and T. Randall Sandifer, Burlington, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant contends that the twenty-four hour reconciliation of the parties terminated defendant's "alimony" obligations. It is well settled that a single act of sexual intercourse between a husband and wife constitutes a reconciliation and terminates alimony obligations. Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978). However, property settlements may be executed before, during or after marriage and are not necessarily terminated by reconciliation. See G.S. 50-20(d); Buffington v. Buffington, 69 N.C.App. 483, 317 S.E.2d 97 (1984). Thus the central issue on this appeal is whether the trial court erred in determining that the $800.00 per month payments denominated "alimony" in the agreement were part of the property settlement between the parties.

Defendant by his second and third assignments of error contends that the trial court committed reversible error in admitting the parol evidence upon which the court based its finding that the payments were part of the property settlement. He argues that the term "alimony" in the separation agreement and property settlement was clear and unambiguous and that therefore the evidence regarding the negotiations was inadmissible parol evidence. We disagree.

The fact that payments are denominated "alimony" militates against a finding that the payments are part of a property settlement but is "far from conclusive on the issue." White v. White, 296 N.C. 661, 668, 252 S.E.2d 698, 702 (1979). Evidence regarding the situation of the parties at the time of the agreement is admissible to show whether the parties intended the payments to be merely alimony or a part of the property settlement. Id.

Defendant next argues that plaintiff's exhibit B, a letter from plaintiff's attorney to defendant's attorney dated 5 March 1980, was erroneously admitted without foundation. This contention is not properly before us. At trial the defendant objected to the admission of plaintiff's exhibit B on the grounds that "any negotiations between the parties prior to culmination of the separation agreement is not admissible; they were simply negotiations and did not become a part of the separation agreement." Defendant never objected to the foundation laid for plaintiff's exhibit B. Defendant having made a specific objection at trial based upon the parol evidence rule may not argue improper foundations on appeal. State v. Sellars, 52 N.C.App. 380, 278 S.E.2d 907 (1981); 1 H. Brandis, Brandis on North Carolina Evidence Sec. 27 (2nd ed. 1982).

By assigning error to the trial court's judgment and denial of his motion for directed verdict, defendant challenges the sufficiency of the evidence to support the court's findings of fact, the sufficiency of the findings of fact to support the conclusions of law and the sufficiency of the conclusions of law to support the judgment.

The evidence taken in the light most favorable to the plaintiff is sufficient to support the trial court's finding that the property settlement provisions and the alimony provisions of the separation agreement and property settlement were intended to be mutually dependent. The stipulated testimony of the plaintiff is to this effect. Plaintiff's exhibit B, the letter from plaintiff's attorney to defendant's attorney dated three months prior to the separation agreement and property settlement, states that "Virgil will pay to Micky the sum of $55,000, all to constitute a property settlement.... As an alternative to the cash settlement of $55,000, Virgil may pay the sum of $1,000 per month for a period of 8 years...."

The trial court's finding of fact that the property settlement and alimony payments were mutually dependent supports its conclusion that the defendant's obligation did not terminate upon renewal of sexual relations. See G.S. 50-20(d); Buffington v. Buffington, 69 N.C.App. 483, 317 S.E.2d 97 (1984). The trial court's conclusion that defendant's obligation did not terminate upon renewal of sexual relations supports its judgment ordering defendant to pay the omitted payments. All of defendant's assignments of error are overruled. The judgment of the district court is affirmed.

Affirmed.

WEBB and PARKER, JJ., concur.