State v. . Gossett

Brogden, J. If a separation agreement is duly executed by a husband and wife, and thereafter the husband visits the wife from time to time, and upon each visit resumes the conjugal relationship, does such conduct invalidate the agreement? *643 Separation agreements, while not favored by our law, have been generally upheld when properly executed. The general principle governing the validity of such agreements, is thus expressed in Taylor v. Taylor, 197 N. C., 197, 148 S. E., 174: “It seems to be unquestioned that a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties.” Moreover, the effect of the resumption of the conjugal relationship between the parties after an agreement has been duly executed, has been discussed in several decisions, notably: Smith v. King, 107 N. C., 273, 12 S. E., 57; Archbell v. Archbell, 158 N. C., 408, 74 S. E., 327; Moore v. Moore, 185 N. C., 332, 117 S. E., 12; S. v. McKay, 202 N. C., 470, 163 S. E., 586. In the Smith case, supra, it was said: “The law, if it recognizes, does not favor, articles of separation, and will not so construe them as to be valid after the parties have themselves canceled the agreement to separate by cohabiting together, unless it appear in- the deed plainly that such separate support is to be continued, notwithstanding any future reconciliation and cohabitation.” In the Archbell case the Court declared: “It is further established that if the parties resume the conjugal relations the agreement will be rescinded.” The same general assertion appears in the Moore case in these words: “We need not discuss this proposition, however, for it has been definitely decided that if the parties resume the conjugal relation the agreement is thereby rescinded.” The heart of the separation contract is contained in the declaration therein: “And do hereby agree to live separate and apart during the remainder of our lives.” Notwithstanding, the defendant continued to visit the wife, to contribute pittances to her support, and upon each visit, to resume sexual relationship. The trial judge, upon this aspect of the case, charged the jury as follows: “The court instructs you, gentlemen of the jury, that if the defendant did that, if after this deed of separation was entered into and before this warrant was sworn out, if he came back to see his wife and on each occasion had sexual intercourse with her, as testified by his wife, then the court instructs you, gentlemen of the jury, that this deed of separation became of no validity at all. "When a husband and wife enter into a deed of separation the policy of the law is that they are to live separate, that they are not to keep up the sexual relation and continue that, but that they are to live separate and apart, and if after the deed of separation is entered into a man goes to see his wife and child, and every time he goes to see her he has sexual intercourse with her, the deed of separation is of no *644 validity at all, it becomes set aside, and tbe court instructs you, if you find tbe facts to be true, tbat tbis man visited bis wife and child after tbis deed of separation was entered into and before tbis indictment or warrant was taken out, if you find tbat to be true, tbat be came to see ber, and tbat every time be came to see ber tbey bad sexual intercourse, then tbe court instructs you to disregard entirely tbe evidence about tbe deed of separation, because, if tbat would be true, tbe parties themselves would disregard it and cannot expect tbe court to regard it if tbey did not regard it, and tbe obligations assumed in tbe contract would all be released from tbe parties and tbe rights of tbe husband and wife and tbe duties and obligations would be reimposed upon tbe parties.” The defendant assigns the foregoing instruction for error, contending that the law therein contained was stated too broadly, for that it has never been held that the mere resumption of sexual relation is sufficient to invalidate a deed of separation. There is ample support in the books justifying the defendant’s exception, but tbis Court is constrained to uphold the view of the law so expressed by the trial judge; otherwise, the separation agreement would degenerate into a mere cloak or device by means of which the husband Avould escape the responsibilities imposed by the marital status and yet be free to partake of such privileges as be chose to enjoy. Manifestly it is not to be assumed that the law would protect the integrity of the agreement and yet thereby sanction and approve, for all practical purposes, illicit intercourse and promiscuous assignation. Tbe separation agreement constituted tbe sole defense to tbe crime charged in tbe warrant, and it necessarily follows tbat after tbe agreement has been treated by tbe parties as a “mere scrap of paper” and set at naught by their conduct, then it no longer avails. No error.