312 S.E.2d 534 | N.C. Ct. App. | 1984
William Stacy ERHART,
v.
Patsy Howard ERHART.
Court of Appeals of North Carolina.
Wade & Carmichael by R.C. Carmichael, Jr., Charlotte, for plaintiff-appellee.
Erwin & Beddow by Fenton T. Erwin, Jr., Charlotte, for defendant-appellant.
VAUGHN, Chief Judge.
The Court was without authority to alter the terms of the deed of separation and the order must be vacated.
The Court was incorrect in its conclusion that because the order of specific performance was enforceable by contempt, the "Court has the equitable power to modify provisions regarding the amount of child *535 support or alimony originally contracted for."
The Court cannot alter the terms of the contract. The Court can, in the exercise of its powers in equity, order specific performance of only such amount as it finds to be proper. This, however, does not alter defendant's rights at law under the agreement. "We hold that the Court in the exercise of its powers in equity could modify the prior judgment ordering specific performance of the separation agreement of the parties but that this modification did not affect the parties' rights at law under the agreement." Harris v. Harris, 307 N.C. 684, 685-86, 300 S.E.2d 369, 371 (1983).
"Had the District Court modified the separation agreement we would affirm the Court of Appeals' opinion vacating that order. However, the District Court did not modify the separation agreement. Instead the court only modified the previous performance." Id., at 687, 300 S.E.2d at 372.
For the reasons stated, the order from which defendant appealed is vacated.
Vacated.
HILL and BECTON, JJ., concur.
