News-Record.com

It's probably safe to say that Deborah Bird and Michael Scott Cooper didn't know anyone was spying on them back in February and March of last year.

But, because someone was, their activities are described in a Court of Appeals decision released today, Bird v. Bird.

In the divorce case from Greensboro, the appeals court reversed a decision by Guilford County Chief District Court Judge Joe Turner. Judge John Arrowood was the author.

James and Deborah Bird married in 1985 and separated in 2004. In 2006, she was granted alimony for 15 years with the provision that the money would stop in the event of her cohabitation.

In May 2007, James Bird filed a motion seeking termination of alimony for exactly that reason. His motion was supported by an affidavit from private investigator Ann Cunningham.

A key statement in that affidavit noted: Cooper had been observed at Plaintiff's (Deborah Bird's) house “for a minimum of eleven (11) consecutive nights”; that Plaintiff and Cooper were observed driving each other's vehicles; that Cooper was observed moving furniture into Plaintiff's house, walking Plaintiff's dog, parking in Plaintiff's garage, and carrying groceries into Plaintiff's house; that Cooper had been observed letting workmen into and out of Plaintiff's house; and that Cooper's house in Hillsborough appeared neglected “as though no one lived in the house.

Nevertheless, Deborah Bird requested summary judgment of her ex-husband's motion -- in effect, a dismissal without a finding of fact. Judge Turner granted it.

The Court of Appeals majority said he was wrong. He should have heard the motion on its merits.

Arrowood's ruling doesn't draw a conclusion on the facts. It doesn't say whether Deborah Bird's relationship with Cooper did or did not amount to cohabitation. The issue is, that's what Judge Turner should have determined, the court said. (A District Count judge's lot in life can sometimes be a trial, if you'll excuse the expression.)

One appeals judge, Barbara Jackson, did not agree and wrote a dissenting opinion. In her view, P.I. Cunningham's affidavit was not admissible because it did not establish that Cunningham herself had direct personal knowledge of the observations she recounted (she may have employed someone else to do most of the actual snooping). Therefore, Turner made the right call, Jackson said.

Because this was a split decision from the Court of Appeals, there is an automatic right of appeal to the Supreme Court. It hardly seems like an issue of sufficient gravity to trouble the supremes, however. Maybe all parties can agree to give the District Court another crack at it. It shouldn't be that hard to decide whether two people were spending enough time in close company to count as cohabitating.

In the meantime, the furtive couple has been warned: Someone might be watching.