concurring in result.
This is a simple case. The parties to this lawsuit, husband and wife, entered into a separation agreement which provided, inter alia, that their residence should remain titled in their names for a period of one year from the date of the agreement and further provided “that if the parties have lived continuously separate and apart for that full period” the wife would transfer her interest in the residence to her husband as part of the property settlement. This agreement was executed on 13 December 1983. During the one year following execution of the agreement, the parties traveled to Tennessee and Florida, sharing a motel room for up to four days. In each of these instances, the parties engaged in one or more acts of sexual intercourse. They spent at least two nights together in the former marital residence, two other nights together away from the residence, and engaged in several acts of sexual intercourse on other occasions. The husband now seeks enforcement of that portion of the separation agreement requiring the wife to transfer her interest in the property to him. In order to do so, he must establish that they “have lived continuously separate and apart for that full period” of one year. The district court granted the wife’s motion for summary judgment and the Court of Appeals affirmed.
The question before the trial court, the Court of Appeals and this Court is whether, admitting the facts as stated above, the *487husband can prove that he and his former spouse “lived continuously separate and apart for that full period” as that language was used in their separation agreement.
Since this Court’s famous (or infamous) decision in Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693 (1978), every divorce lawyer worth his salt has known that the resumption of even casual sexual relations between husband and wife during the period of separation meant that the parties were not living “continuously separate and apart” as that term is used in separation agreements. This language had a clear and unambiguous meaning in North Carolina at the time this agreement was executed and therefore it is unnecessary to have testimony of the parties as to what each of them intended when this language was used.
The dissent makes much of the fact that leading commentators have criticized the rule of Murphy and that the rule of Murphy has now been effectively overruled by recent action of the General Assembly. Such reliance is misplaced, however, since the meaning of the language in 1983 was clear, irrespective of whether the commentators liked it or not. Likewise, the fact that the separation agreement was executed after the enactment of the marital property act is also not controlling. The fact that a separation agreement may be entered into before, during or after the dissolution of a marriage does not prevent the parties from agreeing that certain property will be transferred only if the parties live “continuously separate and apart” for the stated period of time. Here, the husband agreed to a contract which provided for the transfer of the property only if a condition precedent was met. This condition precedent has not been met and the husband is not entitled to a conveyance under this separation agreement. That is the only question that was decided by each of the courts below and each of them decided it correctly. I therefore join the majority in voting to affirm.
In view of the dissenting opinions, I would note that this Court has not resurrected Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693, but simply recognized the absence of any ambiguity in the meaning of the clause in question at the time of the execution of the separation agreement.
Justice MARTIN joins in this concurring opinion.