75 N.C. App. 522 | N.C. Ct. App. | 1985
As the trial court did, we first address the issue of whether the 21 May 1974 consent judgment was modifiable by motion in the cause. For reasons set out below, we hold that it was not and reverse the judgment of the trial court.
As has been noted in many similar cases, there are essentially two types of consent judgments. One is a contract that is approved by the court. It is enforceable or modifiable as an ordinary contract — by an independent action brought by one of the parties. See, e.g., Moore v. Moore, 297 N.C. 14, 252 S.E. 2d 735 (1979). The other is an actual adjudication of the court where the court adopts the agreement of the parties as its judgment and specifically orders compliance with the provisions of the agreement. It is enforceable or modifiable by a motion in the cause. See, e.g., Stancil v. Stancil, 255 N.C. 507, 121 S.E. 2d 882 (1961). See generally, Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964); Levitch v. Levitch, 294 N.C. 437, 241 S.E. 2d 506 (1978).
G.S. 50-16.9, which applies to all orders entered on or after 1 October 1967, provides that any order for the payment of
Recently, in Walters v. Walters, 307 N.C. 381, 298 S.E. 2d 338, reh’g denied, 307 N.C. 703, --- S.E. 2d --- (1983), the Supreme Court held that any distinction between the types of consent judgments would no longer be recognized for purposes of enforcing the alimony provisions contained therein.
[W]e now establish a rule that whenever the parties bring their separation agreements before the court for the court’s approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. These court ordered separation agreements, as consent judgments, are modifiable and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.
Id. at 386, 298 S.E. 2d at 342. The Court specifically held that its previous opinions in Bunn and Levitch were no longer controlling to the extent that they conflicted with the new rule. By its own terms, the rule of Walters was prospective only. Doub v. Doub, 68 N.C. App. 718, 315 S.E. 2d 732 (1984), modified and affirmed, 313 N.C. 169, 326 S.E. 2d 259 (1985).
With these principles in mind, we turn to the Deed of Separation executed by the parties and incorporated by reference into the consent judgment of 21 May 1974. We find that the alimony provisions are clearly within the exception set out in White and
It is clear that neither party intended any provision of the Deed of Separation to be modifiable except as provided by its own terms or enforceable except by a separate action. The deed specifies that its incorporation by reference into the consent judgment does not constitute a merger of the two. The deed also recites the agreement of the parties to be bound by it irrespective of any divorce decree. Further, the deed of separation in this case contains a provision entitled “COVENANTS NOT To INTERFERE,” which provides in part as follows: “It is the intention of the parties that each will not bother, molest, or interfere with the other in any way whatsoever from this day forward.” In Cecil v. Cecil, 74 N.C. App. 455, 328 S.E. 2d 899 (1985), we held that a similar provision in the separation agreement involved in that case was evidence of the parties’ intention that the agreement be a permanent property settlement. See also Barr v. Barr, 55 N.C. App. 217, 284 S.E. 2d 762 (1981).
Notwithstanding the intent of the parties to the deed of separation, the court that entered the consent judgment clearly intended that the consent judgment only be an approval of the deed of separation and not an adoption of it. In Levitch v. Levitch, supra, the consent judgment contained language respecting incorporation by reference of the deed of separation and survival of the deed beyond the court’s order that is almost identical to the language in the consent judgment before us. There, the Supreme Court held that the “unequivocal language” of the consent judgment indicated the trial court’s intent to adopt the deed of separation and to order compliance with its terms. Here, however, the court specifically provided that the incorporation by reference of the Deed of Separation into the consent judgment was not intended to be a merger of the two, only that the Deed of Separation was part of the judgment of the court. The court made findings of fact in the consent judgment that the terms of the Deed of Separation were in the best interest of both parties and specifically that the terms relating to alimony were appropriate. From the following finding it is clear that the court intended the consent judgment to be the final disposition of any matters in controversy.
*528 17. The parties thereto and their attorneys accept this Order as a final determination of all matters and things raised or alleged or which might have been raised or alleged by the plaintiffs complaint, and of all matters and things in controversy between the parties, and all matters and things which might have been at issue, in law or in fact, at the trial of this action; and it is agreed and consented to by the parties hereto and their attorneys that this Order shall be as full, complete and final a determination as if any issues of fact had been answered by a jury and questions of law determined by the Court.
Similar language in a settlement agreement was recently held by this court to indicate an intent that the agreement be a permanent property settlement and not modifiable. Cecil v. Cecil, supra.
As a further indication that the alimony provision was intended to be part of a property settlement and not intended to be modifiable by a motion in the cause, we note that the Deed of Separation makes the provision for “permanent alimony” modifiable as follows:
Upon Husband’s reaching the age of sixty-five either party may make motion in any court having jurisdiction for review and revision of the terms herein stated for the payment of permanent alimony. Said review and revision by the court shall include consideration of the estates, earnings, earning capacity, condition, accustomed standard of living of the parties and other relevant facts as provided by law. Such consideration shall not include the then income or estate of Husband’s spouse, if any, nor the inheritance of Husband, if any.
While this capability for independent modification might, under Acosta v. Clark, 70 N.C. App. 111, 318 S.E. 2d 551 (1984), be construed to mean that the alimony provision is separable from the rest of the agreement and therefore modifiable under G.S. 50-16.9, we do not think that is the intention of the parties or the court in this case. Rather, it indicates an intent that the alimony provision not be modified except under the terms of the agreement and then only after a fixed length of time. Recognizing this, the court did not specifically order the payment of alimony, but merely
Finally, it is clear from the record that the payment by defendant of alimony to plaintiff was an integral part of the overall property settlement between the parties. Both plaintiff and defendant were financially secure when they entered into the deed of separation and the consent judgment in 1974. According to plaintiff, they lived “in the lap of luxury.” They each held, jointly or individually, several substantial income producing investments. The Deed of Separation disposing of their assets consumes 15 pages of the record on appeal and is a comprehensive and detailed division of the property and obligations of the parties. The “permanent alimony” provision is only one of 42 separate provisions, each dealing with a specific asset or obligation. The fact that defendant’s. obligation to pay alimony was suspended for a fixed seven year term contingent upon his transfer of his interest in the marital home indicates that the “alimony” —a substantial sum — was not necessary for plaintiffs support but was a reciprocal obligation supported by consideration and was part of an integrated property settlement.
We think it is clear that the alimony provisions contained in the consent judgment here were not alimony at all, despite their denomination as “permanent alimony”; that they are actually a part of an overall property settlement by the parties; that they are not separable from the other provisions of the Deed of Separation; and that modification of the alimony provisions now would destroy the agreement. Accordingly, we hold that G.S. 50-16.9 does not apply and that it was error for the trial court to determine that the consent judgment of 21 May was modifiable by a motion in the cause.
Because the consent judgment was not modifiable, it was error for the trial court to terminate defendant’s obligation for “permanent alimony” under the consent judgment. Further discussion of that assignment of error is unnecessary. The judgment of the court is reversed, and the cause is remanded for proceedings to enforce the Deed of Separation.
Reversed and remanded.
