Bird v. Bird, 363 N.C. 774

Summary

The North Carolina Supreme Court considered whether an affidavit and related evidence forecast a genuine issue of material fact regarding a dependent spouse’s alleged cohabitation, which would terminate alimony under N.C.G.S. § 50-16.9(b). The Court held that the investigator’s affidavit satisfied Rule 56(e)’s personal-knowledge requirement and, together with the opposing affidavit, was sufficient to overcome summary judgment. The Court affirmed the Court of Appeals’ reversal of the trial court’s grant of summary judgment.

Holdings

1. Under the specific facts of this case, the trial court was permitted to consider the Cunningham Affidavit because the affidavit's statement that Cunningham was retained to investigate the parties reasonably supported the inference that its averments were based on her personal knowledge.
2. The Cunningham and Cooper affidavits, considered together, raised a genuine issue of material fact regarding whether plaintiff cohabited with Cooper, so summary judgment for plaintiff was improper.

Questions Presented

1. Whether the Cunningham Affidavit satisfied Rule 56(e)'s personal-knowledge and competency requirements despite repeatedly using the passive voice.
2. Whether the affidavits, viewed under the summary-judgment standard, forecast sufficient evidence to create a genuine issue of material fact regarding plaintiff's cohabitation with Cooper.

Disposition

affirmed