Goodwin v. Snepp

10 N.C. App. 304 | N.C. Ct. App. | 1971

PARKER, Judge.

The cardinal rule for construing a separation agreement, as for construing contracts generally, is to ascertain the intention of the parties as expressed in the language of their agreement, taking into consideration the subject matter, the end in view, and the situation of the parties at the time the agreement was made. Bowles v. Bowles, 237 N.C. 462, 75 S.E. 2d 413; 24 Am. Jur. 2d, Divorce and Separation, § 904, p. 1026. In the present case the agreement expressly provided that the husband pay the wife, as “alimony,” the sum of $500.00 on the first of each month. Such payments are to continue until the wife dies or remarries or until the husband dies, none of which events has occurred, and are to continue notwithstanding any decree of divorce. The only language in the agreement relating to any change in the amount of the monthly payments is contained in paragraph 6(d), which is as follows:

“(d) Wife agrees that if Husband becomes disabled from practicing his profession, or if his income is substantially reduced below its present level, the amount of alimony payable hereunder may be' renegotiated in light of the then existing circumstances of the parties, and that in the event an agreement cannot be reached the matter shall be submitted to the Superior Court of Mecklenburg County, North Carolina, for determination by a judge thereof.”

This language contemplates a modification in the amount of the monthly payments if the husband’s income is substantially reduced, but then only after consideration of the circumstances of both of the parties. In such event, if agreement cannot be reached by renegotiation, the matter is to be submitted to a judge of Superior Court of Meckenburg County for determination.

From an examination of the order appealed from, it would appear that the trial judge reduced the amount of the monthly payments proportionately with the reduction he found in defendant’s income and in so doing failed to make findings with respect to the existing circumstances of both parties. This was one of the facts at issue. The trial court also committed error in making the provision in the order calling for future revisions proportionate to changes in the salary or other income of the defendant, since necessarily such automatic revisions will fail to take into account the circumstances of both parties at the time the revisions occur.

The trial judge also failed to consider and make a ruling on the effect of the unilateral reduction in payments from $500.00 per month to $250.00 per month by the defendant. This unilateral reduction began 1 June 1968 and continued up to the time of the hearing. The separation agreement provided the machinery for modification of the amount payable. While it appears that the defendant attempted to negotiate the amount under the terms of the agreement, once it became obvious that the attempt at negotiation would be unsuccessful the defendant took it upon himself to modify the agreement rather than submit it to a judge of the Mecklenburg Superior Court as the agreement provides. Nothing in the separation agreement gives either party the right to make changes by unilateral action without the consent of the other. The trial judge must consider and decide this claim of the plaintiff for the balance of the amount due under the agreement from 1 June 1968 until the time of the hearing.

For the reasons stated, the order appealed from is reversed and this case is remanded for reconsideration in the light of this opinion.

Reversed and remanded.

Chief Judge Mallard and Judge Hedrick concur.