Pennington v. Pennington

255 S.E.2d 569 (1979)

Zuleen Daniel PENNINGTON
v.
Clem PENNINGTON, Jr.

No. 7810DC861.

Court of Appeals of North Carolina.

June 19, 1979.

Hatch, Little, Bunn, Jones, Few & Berry by Thomas D. Bunn, Raleigh, for plaintiff-appellee.

Vaughan S. Winborne, Raleigh, for defendant-appellant.

WEBB, Judge.

We hold that the court committed error in its finding that "the Defendant from his pleadings and testimony has not shown a resumption of the full marital relations between he [sic] and his wife." An order for alimony pendente lite is rescinded by a reconciliation between the parties. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). The defendant has alleged and testified to acts of intercourse between his wife and him twice in February and once around Easter of 1978. Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978) holds that intercourse between the parties constitutes a reconciliation which voids a separation agreement. We can see no reason why it should not also constitute reconciliation which would void the order for alimony pendente lite. We reverse the order of the district court and remand this case for a hearing as to whether the parties have been reconciled so as to void the order for alimony pendente lite.

We note that Murphy v. Murphy, supra, on which we base the holding of this case had not been filed at the time the order was entered in district court in this case.

Reversed and remanded.

MORRIS, C. J., and HEDRICK, J., concur.