Morrow v. Morrow

94 N.C. App. 187 | N.C. Ct. App. | 1989

HEDRICK, Chief Judge.

Plaintiff assigns error to denial of his Rule 60(b)(4) motion to be relieved from the “Memorandum of Judgment/Order” and the court’s allowing defendant’s Rule 70 motion ordering plaintiff to “sign the separation agreement. . . .”

Plaintiff argues, among other things, that the provision in the “Memorandum of Judgment/Order” requiring him to “sign the separation agreement” is void for vagueness and that the court had no authority to order him to sign a separation agreement pursuant to the void “Memorandum of Judgment/Order.” We focus our attention therefore on the question of whether the provision in the “Memorandum of Judgment/Order” entered on 25 November 1986 requiring plaintiff to sign a “standard separation agreement” is so vague and uncertain as to be impossible to enforce.

A judgment must be complete and certain, indicating with reasonable clearness the decision of the court, so that such judgment may be enforced. Bank v. Robertson, 39 N.C. App. 403, 250 S.E. 2d 727 (1979). If the parties are unable to ascertain the extent of their rights and obligations, a judgment may be rendered void for uncertainty. Id. This is equally true with judgments to which the parties have consented. Hardy v. Crawford, 62 N.C. App. 689, 303 S.E. 2d 388 (1983). Such indefinite judgments, although consented to by the parties, are void if they are indefinite, and they have no effect in future proceedings. Id.

In the present case, although Judge Montgomery found as a fact “[t]hat there is such a thing as a standard separation agreement,” this finding has no support in our law. While we recognize that some of the form books in general use by the profession contain forms for separation agreements, and members of our profession might from time to time refer to such forms as “standard separation agreements,” our law does not recognize that any particular form is a “standard separation agreement” or that all separation agreements shall contain the same provisions. Thus, when the court in the “Memorandum of Judgment/Order” provided that plaintiff and defendant would sign a “standard separation agreement,” neither the judge nor the parties nor the parties’ attorneys knew with any certainty what specific or precise provisions such instrument would contain. It follows therefore that if the “Memorandum of Judgment/Order” was void, Judge Montgomery had no authority to order the parties to comply with any of its terms.

The provision in the “Memorandum of Judgment/Order” stating that “[e]ach party shall be entitled to a divorce from bed and board from each other” is merely a recital, and is under no circumstances a judgment of divorce from bed and board. This recital, together with other provisions written into the form, merely indicates the parties intended to settle the case then before the court by entering into a separation agreement in lieu of proceeding with the trial of the case for divorce from bed and board.

Finally, we note that the “Memorandum of Judgment/Order” in this case is a form apparently being used by some of the district judges in our state. Nothing we have said herein is to be construed in any way to discourage use of such forms. Indeed, we believe the practice will be helpful to all parties in certain cases, but as demonstrated by this case, it is important that all parties understand the proper use of these forms and the full legal significance of a “Memorandum of Judgment/Order” pending the preparation and signing of the formal judgment. As demonstrated by this case, the “Memorandum of Judgment/Order” must be sufficiently definite and certain so that it can be enforced.

For the reasons stated above, the order denying plaintiff’s Rule 60(b)(4) motion is reversed, and the order granting defendant’s Rule 70 motion is vacated, and the cause is remanded to District Court, Rowan County for entry of an order declaring the “Memorandum of Judgment/Order” entered on 25 November 1986 to be void.

Reversed, vacated, and remanded.

Judges ARNOLD and WELLS concur.