84 N.C. App. 141 | N.C. Ct. App. | 1987
The question before the trial court was whether defendant breached the terms of the separation agreement. Since that issue was answered in defendant’s favor and all plaintiffs requests for relief were thereby denied, the threshold issue here is whether defendant has a right to appeal based on the trial court’s additional conclusion that the consent order is without force and effect as to the terms regarding education contained in the separation agreement.
In Roberts v. Akins, 261 N.C. 735, 136 S.E. 2d 111 (1964), our Supreme Court addressed a similar issue. In that case, the plaintiffs instituted action to enjoin the defendants from computing in a certain manner the selling time allotted to warehouse firms. In their response to an order to show cause, defendants argued that plaintiffs were estopped by judgments entered in the U.S. District Court for the Eastern District of North Carolina. The matter was heard, and the trial court entered an order finding that plaintiffs were asserting rights not previously exercised; the court then denied the plaintiffs’ motions and discharged the rule against defendants to show cause. However, the court went on to consider the defendants’ estoppel argument; it found that the plaintiffs were not bound by the judgment of the U.S. District Court. Defendants excepted to that portion of the order and appealed. The Supreme Court dismissed the appeal, stating:
Per CURIAM. The only question before Judge Nimocks was whether plaintiffs should be granted temporary injunc-tive relief “for the year 1963.” It was decided in favor of*144 defendants. Hence, defendants were not aggrieved by Judge Nimocks’ order and their purported appeal must be dismissed. [Citations omitted.]
With reference to defendants’ exception to the court’s expression of opinion and ruling with reference to defendants’ plea of estoppel, it seems appropriate to say: Judge Nimocks’ decision was not based on this ruling. Moreover, any ruling by Judge Nimocks with reference to defendants’ plea of estoppel would have significance only for the purpose of resolving the question then before him. The judge presiding at the final hearing is not bound by said ruling but will decide de novo all questions with reference to defendants’ said plea. Hence, it does not appear defendants are prejudiced by the portion of Judge Nimocks’ order to which they excepted.
Roberts v. Akins, supra.
In this case, the trial court stated in its conclusions of law:
1. That the Separation Agreement of March 29, 1978 is a valid and enforceable instrument executed by the parties.
2. That the consent order of November 10, 1980 neither incorporated nor modified the terms of the Separation Agreement.
3. The defendant is not in breach of the Separation Agreement, and the plaintiff has failed to demonstrate that she is entitled to an order of specific performance or any other relief under the terms of the contract.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiffs request for relief is denied.
Although the finding that the defendant is not in breach of the separation agreement follows those concerning the validity of the consent order, its order denying plaintiff s request for relief is not based on defendant’s argument that the separation agreement is not valid. Plaintiffs cause of action was premature; the court found as a matter of fact that defendant paid his daughter’s expenses “promptly” when the college submitted a bill in August. To the extent that the court did take into account defendant’s assertion that the separation agreement was invalid, it was —as in
Dismissed.