                                       NO. COA13-987

                       NORTH CAROLINA COURT OF APPEALS

                                  Filed: 6 May 2014


RODNEY WILSON SOREY,
     Plaintiff,

      v.                                      Beaufort County
                                              No. 12-CVD-1185
MELISSA LYNN SOREY,
     Defendant.


      Appeal by defendant from Order entered 13 May 2013 by Judge

Darrell    B.    Cayton,    Jr.    in    District     Court,   Beaufort    County.

Heard in the Court of Appeals 23 January 2014.


      Hassell, Singleton, Mason & Jones, P.A., by Sid Hassell,
      Jr., for plaintiff-appellee.

      Windy H. Rose, for defendant-appellant.


      STROUD, Judge.


      Melissa Sorey (“defendant”) appeals from an order entered

13 May 2013 denying her request for post-separation support on

the basis of marital misconduct. We affirm.

                                  I.     Background

      Rodney Sorey (“plaintiff”) and defendant were married on 11

July 1987 and separated on 27 August 2011. The parties have four

adult children and one minor niece whom they have raised as one

of   their      children.   Plaintiff       filed   an   action   for     absolute
                                           -2-
divorce    in     Beaufort    County       on    28    December     2012.       Defendant

answered and raised a counter-claim for post-separation support

and alimony. Plaintiff then replied, alleging that defendant had

committed marital misconduct prior to the date of separation in

that she had “constructively abandoned the Plaintiff by dumping

his clothes on the front porch of his son’s residence and by

repeated illicit liaisons with various men” and that she “has

engaged    in   illicit      sexual    behavior         during    the     marriage        and

before the separation with other men.”

    The    trial     court     held    a    hearing      on   the    issue      of    post-

separation support on 29 April 2013. At the hearing, the trial

court took evidence and heard testimony by the parties and two

of their adult sons. By order entered 13 May 2013, the trial

court    denied    defendant’s        request     for    post-separation         support

because   it    found   that    defendant        had     committed        two   forms      of

marital    misconduct:       illicit       sexual     behavior      and    abandonment.

Defendant filed written notice of appeal from the trial court’s

order on 17 May 2013.

                        II.    Appellate Jurisdiction

    Defendant       appeals     from       the   trial    court’s       denial       of   her

motion    for     post-separation          support.      Post-separation         support

orders are interlocutory. Stephenson v. Stephenson, 55 N.C. App.
                                     -3-
250, 251, 285 S.E.2d 281, 281 (1981). Although orders allowing

post-separation support do not affect a substantial right, see,

e.g., Rowe v. Rowe, 131 N.C. App. 409, 411, 507 S.E.2d 317, 319

(1998), that rule does not apply where the dependent spouse’s

request   for   post-separation     support   was    denied    by   the   trial

court, Mayer v. Mayer, 66 N.C. App. 522, 525, 311 S.E.2d 659,

662, disc. rev. denied, 311 N.C. 760, 321 S.E.2d 140 (1984).

     Here, the trial court denied defendant’s request for post-

separation    support.   Defendant    asserts     that   the   trial   court’s

order affects a substantial right. Plaintiff does not contend

otherwise. Under Mayer, we hold that the trial court’s order

affects   a   substantial   right    and   that     defendant’s     appeal   is

properly before this Court.

                     III. Post-separation Support

A.   Standard of Review

     In reviewing an order concerning post-separation support we

must consider “whether there was competent evidence to support

the trial court’s findings of fact and whether its conclusions

of law were proper in light of such facts.” Oakley v. Oakley,

165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004) (citation and

quotation marks omitted). “The trial court’s findings need only

be supported by substantial evidence to be binding on appeal. We
                                     -4-
have defined substantial evidence as such relevant evidence as a

reasonable     mind   might    accept      as   adequate   to     support   a

conclusion.” Peltzer v. Peltzer, ___ N.C. App. ___, ___, 732

S.E.2d 357, 359 (citations and quotation marks omitted), disc.

rev. denied, 366 N.C. 417, 735 S.E.2d 186 (2012).

B.   Analysis

     Defendant argues that the trial court erred in denying her

request for post-separation support because its finding that she

abandoned    her   husband    was   unsupported    by   the     evidence.   We

disagree.

             Post-separation support is “spousal support
             to be paid until the earlier of either the
             date    specified    in   the    order    of
             postseparation support, or an order awarding
             or denying alimony.” N.C. Gen. Stat. § 50–
             16.1A(4) (2003). A depend[e]nt spouse is
             entitled to post-separation support if the
             court finds “the resources of the dependent
             spouse are not adequate to meet his or her
             reasonable needs and the supporting spouse
             has the ability to pay.” N.C. Gen. Stat. §
             50–16.2A(c) (2003). Factors such as the
             parties’ standard of living, income, income
             earning abilities, debt, living expenses and
             legal obligations to support other persons
             are considered in determining the financial
             needs of the parties. N.C. Gen. Stat. § 50–
             16.2A(b) (2003). In addition, the judge
             shall consider marital misconduct by the
             dependent spouse, occurring prior to or on
             the date of separation, and also any marital
             misconduct by the supporting spouse. N.C.
             Gen. Stat. § 50–16.2A(d) (2003). Acts of
             “marital misconduct” include sexual acts,
                                           -5-
              N.C.   Gen.   Stat.   §  14–27.1(4)   (2003),
              voluntarily engaged in with someone other
              than a spouse, N.C. Gen. Stat. § 50–
              16.1A(3)(a)    (2003)   and    “[i]ndignities
              rendering the condition of the other spouse
              intolerable and life burdensome.” N.C. Gen.
              Stat. § 50-16.1A(3)(f)(2003).

Evans v. Evans, 169 N.C. App. 358, 364-65, 610 S.E.2d 264, 270

(2005).      If    the   trial    court    finds    that    the    dependent       spouse

committed         marital      misconduct,       that    finding        alone     may    be

sufficient reason for the trial court to conclude the supporting

spouse is not entitled to post-separation support and deny such

a request.        Id. at 365, 610 S.E.2d at 270.

    One form of marital misconduct is abandonment. N.C. Gen.

Stat.    §   50-16.1A(3)(c)        (2013).      “Abandonment      occurs        where   one

spouse       brings      the     cohabitation       to     an     end     (1)     without

justification, (2) without consent, and (3) without intention of

renewing the marital relationship.” Hanley v. Hanley, 128 N.C.

App. 54, 56, 493 S.E.2d 337, 338 (1997).

    Here,         the    trial   court    specifically      found       that    defendant

“abandoned         the      Plaintiff      by      discontinuing         the      marital

cohabitation without just cause or excuse.”                         The trial court

based its ultimate finding on the following findings:

              15. Some time prior to August 27, 2011 the
              Plaintiff advised the Defendant that she
              wanted them to move to the residence which
              she now occupies . . . and the Plaintiff
                                        -6-
              told her that he did not wish the family to
              move to this location.

              16. On August 27, 2011, while the Plaintiff
              was at work, the Defendant moved to [the
              residence she now occupies], and also moved
              the Plaintiff’s clothes to the front porch
              and in the front yard of the residence [of
              the parties’ son] . . . .

              17. The Plaintiff learned of this move
              through a phone call from a friend which he
              received at work, and he returned to North
              Carolina the next day to find his clothes on
              the porch and in the front yard of the
              [son’s] residence . . . .

              18. The Defendant advised the Plaintiff by
              telephone that she had decided to move, that
              she had found someone else and that she did
              not want him anymore.

              19. The    Plaintiff did not provoke  or
              condone the actions of the Defendant set
              forth above.

       Defendant     contends    that     the       trial   court’s    finding   of

abandonment was unsupported by competent evidence. She argues

that    the   actual   date    she   left     the    marital   residence   was   in

September 2011, after the date of separation, which the trial

court found to be 27 August 2011. She also challenges finding 17

as     unsupported     by     competent     evidence.       Finally,     defendant

contends that because she told plaintiff in advance that she was

moving and plaintiff said he did not want to move with her, he

consented to the separation.
                                    -7-
        “When an application is made for postseparation support,

the court may base its award on a verified pleading, affidavit,

or other competent evidence.” N.C. Gen. Stat. § 50-16.8 (2013).

“The trial court is in the best position to weigh the evidence,

determine the credibility of witnesses and the           weight to be

given their testimony.” Goodson v. Goodson, 145 N.C. App. 356,

362, 551 S.E.2d 200, 205 (2001) (citation and quotation marks

omitted). “It is elementary that the fact finder may believe

all, none, or only part of a witness’ testimony. In re T.J.C.,

___ N.C. App. ___, ___, 738 S.E.2d 759, 765 (citation, quotation

marks, and brackets omitted), disc. rev. denied, ___ N.C. ___,

743 S.E.2d 194, 194, 642 (2013).

    Each of the trial court’s findings of fact was supported by

plaintiff’s testimony at the hearing. Plaintiff testified to the

facts   as   recited   by   the   trial   court.   Although   there   was

conflicting evidence on a number of points           and the evidence

regarding the timing of these events was unclear, it is the

trial court’s duty to resolve such conflicts and ambiguity in

its findings. “While contrary inferences might have been drawn

from this same evidence, it was the trial judge’s prerogative to

determine which inferences should be drawn and which inferences

should not be.” In re Estate of Trogdon, 330 N.C. 143, 152, 409
                                        -8-
S.E.2d 897, 902 (1991). The inferences drawn here by the trial

court were reasonable and supported by evidence introduced at

the hearing.

      We also disagree with defendant’s assertion that the trial

court’s      findings     show     that    plaintiff        consented     to     the

separation. Defendant informed plaintiff that she was moving.

Plaintiff responded that he did not want to move. As a result,

defendant      left      the     marital      home,     deposited     plaintiff’s

belongings at their son’s house, and told plaintiff that she did

not   want    him     anymore.    The   trial     court     clearly   disbelieved

defendant’s testimony that plaintiff had been abusive, severely

abused       alcohol,      had     engaged        in      numerous      adulterous

relationships,      or   otherwise      behaved    in   a   manner    which    might

justify defendant’s abandonment of the marital home.

             Mere   acquiescence   in  a   wrongful   and
             inevitable separation, which the complaining
             spouse could not prevent after reasonable
             efforts to preserve the marriage, does not
             make the separation voluntary or affect the
             right to divorce or alimony. Nor, under such
             circumstances, is the innocent party obliged
             to protest, to exert physical force or other
             importunity to prevent the other party from
             leaving.

             . . . .

             The trial court’s findings are conclusive if
             supported by any competent evidence, even
             when the record contains evidence to the
                                             -9-
               contrary. Moreover, since there is no all-
               inclusive definition as to what will justify
               abandonment, each case must be determined in
               large measure upon its own circumstances.

Hanley, 128 N.C. App. at 57, 493 S.E.2d at 339 (citations and

quotation marks omitted).

       Plaintiff       was    under    no   obligation      to   explicitly    protest

defendant’s decision to leave the marital home, and his failure

to    object    does    not    necessarily         constitute    consent.   Plaintiff

testified, and the trial court found, that he only became aware

that defendant was leaving the marital home while he was away on

work. When he found out, he called her and she informed him that

she no longer wanted him and that she had found someone else.

       We conclude that the trial court’s finding that defendant

had    abandoned       the    marital       home    was   supported    by   competent

evidence. We further conclude that the trial court’s finding

that plaintiff did not consent to defendant’s abandonment was

supported      by   competent         evidence.     These   findings    support   the

trial court’s conclusion that defendant had committed marital

misconduct and its ultimate decision to deny defendant post-

separation      support.       Accordingly,        we   affirm   the   trial   court’s

order denying defendant’s request for post-separation support.1



1
  As the findings on abandonment are sufficient to support the
trial court’s order, we need not address defendant’s arguments
                                    -10-
                              IV.   Conclusion

    We affirm the trial court’s order denying defendant post-

separation    support   because     its    findings    on   abandonment    are

supported    by   competent   evidence,     those     findings   support   its

conclusions of law, and its ultimate decision to deny defendant

post-separation support.

    AFFIRMED.

    Judges HUNTER, Jr., Robert N. and DILLON concur.




regarding the findings on illicit sexual behavior.
