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Marital Misconduct and Post Separation Support

Wayne Hopper, Legal Assistant

Sorey v. Sorey, 757 S.E.2d 518 (2014)

Divorce is not something anyone expects when they get married. The end of a marriage can be more difficult when one spouse has engaged in behavior that violates the fundamental tenets of marriage. Such behavior is considered marital misconduct in the legal world, and it can take different forms, such as sexual affairs, reckless spending, abandonment, or excessive substance abuse. Misconduct can lead to separation or the end of a marriage. North Carolina law addresses marital misconduct as a cause of separation or divorce and how it may be considered in claims for post-separation or alimony.

Rodney Sorey (Plaintiff) and Melissa Sorey (Defendant) were married on July 11, 1987 and separated on August 27, 2011. Mr. Sorey filed an action for divorce on December 28, 2012. Mrs. Sorey answered this action and raised a counterclaim seeking post-separation support and alimony. Mr. Sorey then replied, alleging that Mrs. Sorey had “constructively abandoned” him by leaving his clothes at his son’s residence. There was a trial court hearing on the issue of post-separation support on April 29, 2013. An order was entered by the trial court on May 13, 2013, that dismissed Mrs. Sorey’s request for post-separation support, finding that she had committed marital misconduct by abandonment. Mrs. Sorey then filed a written notice of appeal.

The issue of concern is whether the trial court erred in denying Mrs. Sorey’s request for post-separation support based on marital misconduct.

Factors such as marital misconduct by the dependent spouse, occurring prior to or on the date of separation, may be considered when deciding whether to award post-separation support. In reviewing the trial court’s order denying Mrs. Sorey’s claim for post-separation support, the Court of Appeals had to consider “whether there was competent evidence to support the trial court’s findings of fact,” which established that marital misconduct by Mrs. Sorey did occur. Findings of fact are essentially decisions made by a judge or jury on the issues before the court. These decisions are based on facts submitted by the involved parties as evidence. The fact finder may believe all, some, or none of a witness’s testimony. To find abandonment occurred, the findings of fact must show “by substantial evidence” that one spouse “brought cohabitation to an end without justification, without consent, and without the intention to renew the marital relationship.”

The trial court’s findings of fact to support abandonment prior to separation included the fact that Mrs. Sorey moved out of the marital home without informing her husband. He learned of her move through a phone call from a friend, which he received while out of town for work. As Mrs. Sorey moved her things out of the home, she moved Mr. Sorey’s clothes to the front porch and the residence’s front yard. There was no evidence submitted to the trial court that showed that Mr. Sorey provoked or condoned his wife’s actions and therefore did not lend consent to her leaving. After leaving the home, Mrs. Sorey advised her husband by telephone that she had decided to move, found someone else, and did not want him anymore.

Based on findings of fact (and conclusions of law), if the trial court finds that the dependent spouse committed marital misconduct, that can be enough to deny them post-separation support. After reviewing the trial court’s findings of fact in this case, the Court of Appeals agreed that Mrs. Sorey’s actions met all the statutory requirements of abandonment. The Court of Appeals consequently upheld the trial court’s ruling denying Mrs. Sorey post-separation support based on her abandonment.