Bailey v. Bailey

26 N.C. App. 444 | N.C. Ct. App. | 1975

PARKER, Judge.

The copy of the separation agreement appearing in the record discloses that it was properly executed and acknowledged in conformity with the requirements of G.S. 52-6. No question has been raised in this litigation as to the validity of the agreement, and both parties recognize that it is binding as to them. The sole question presented by this appeal is whether the court, upon a showing of a change in the circumstances of the parties occurring after execution of the agreement, has the power to modify the provisions in the agreement relating to the payments to be made by the defendant for the benefit of the plaintiff. We agree with the trial judge that the court has no such power.

“The ordinary rules governing the interpretation of contracts apply to separation agreements and the courts are without power to modify them.” Church v. Hancock, 261 N.C. 764, 765, 136 S.E. 2d 81, 82 (1964). Of course, no agreement between husband and wife can deprive the court of its inherent authority to protect the interests and provide for the welfare of minor children, Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963) ; Rabon v. Ledbetter, 9 N.C. App. 376, 176 S.E. 2d 372 (1970), but the rights of the children are in no way involved in the present appeal. We hold that insofar as the rights of the parties before us are concerned, the court had no inherent power to revise the contract. Furthermore, we do not agree with defendant’s contention that the parties in the present case by their contract evidenced an intention that the court should have such a power with respect to the present contract. It is true that the contract describes the payments to be made for the benefit of the wife as “alimony” and that it provides for termination of the payments upon the occurrence of the same events which, under G.S. 50-11 (c) and G.S. 50-16.9 (b), would cause termination of the wife’s right to receive alimony awarded by a decree of court. However, to imply from these provisions that the court might thereafter revise their agreement in the same manner and under the same circumstances in which the court admittedly can revise its own prior decrees awarding alimony simply requires a more vigorous rewriting of the contract by implication than we are willing to undertake. Had the parties actually intended that the court should have the same power to change from time to time the amount of the payments which they had agreed upon, surely such an important provision would have been expressly stated and would not have been left to be included only by vague implication.

Affirmed.

Chief Judge Brock and Judge Arnold concur.