Plаintiff and defendant entered into a separation agreement calling for, among other things, defendant to pay alimony and child support to plaintiff. Plaintiff instituted this action claiming defendant had stopped making the payments called for in the agreement. Plaintiff requested payment of arreаrages and an order directing specific performance of the agreement. Defendant claimed he was excused from the payment of alimony and child support because plaintiff violated provisions of the agreement providing for visitation, barring plaintiffs harassment of the defеndant and prohibiting plaintiff’s cohabitating with a member of the opposite sex in the *234 presence of the children. The trial court granted partial summary judgment for the plaintiff, ordering defendant to pay more than $11,000.00 in arrearages and directing specific performance of certain pоrtions of the separation agreement. On appeal, defendant contends the trial court erred in granting partial summary judgment for plaintiff. We hold the trial court erred in granting summary judgment on the plaintiff’s claim for alimony. We further hold that plaintiff was entitled to judgment on the claim for child support, finding defendаnt’s payment of child support was not dependent upon plaintiff’s compliance with the visitation, non-harassment and non-cohabitation provisions of the agreement.
Plaintiff (wife) and defendant (husband) were married on 11 July 1970; three children were born of the marriage. The parties separated on 2 January 1985. On 29 April 1985, the parties executed a separation agreement. The agreement contained provisions regarding custody, visitation, child support, alimony, property settlement, and certain other miscellaneous provisions. The agreement called for $250.00 per month alimony аnd $500.00 per child per month in child support, to be paid by defendant to plaintiff. The agreement provided for increases in the amount of child support and alimony by providing for percentage adjustments based upon changes in the “Consumer Price Index for Consumer Goods.” Plaintiff and defendant subsequently divоrced.
Plaintiff filed this action on 17 February 1987, alleging defendant began reducing the child support payments in May of 1986. She further alleged that defendant failed to increase alimony or child support as provided in the agreement. In her prayer for relief, plaintiff requested that the court (1) award her custody of the children, (2) require the defendant to pay alimony and child support including the increases for both as provided in the separation agreement, (3) direct defendant to pay arrearages, and (4) enforce other provisions of the agreement. In an amendment to the complaint, the plaintiff requested the court enforce other provisions of the agreement, including a provision banning cohabitation with a member of the opposite sex while the children are visiting and a provision providing for tickets to certain athletic events.
In his answer and counterclaim, defendant alleged that plaintiff breached the separation agreement by harassing him, by refusing to comply with custody and visitation provisions, and by cohabitating with a male to whom she is not married. Defendant also claimed *235 that he is financially unable to comply with the support and alimony provisions of the agreement. Defendant prayed for dismissal of the plaintiff’s complaints, recision of the 29 April 1985 agreement, damages for plaintiff’s breaches of the separation agreement, and for custody of the children.
On 18 January 1989, plaintiff filed a motion, with supporting affidavits, for partial summary judgment. At the 20 July 1989 hearing on plaintiff’s motion, the court determined that there were no genuine issues of material fact on the issues of whether defendant breached the provisions of the agreement providing for child support, alimony, increases in both, and providing the plaintiff and children tickets to certain athlеtic events. The trial court’s order directed defendant to pay $11,828.48 in arrearages, which amount included Consumer Price Index increases, plus interest of $1,532.86. The order also directed specific performance of the provisions of the agreement dealing with support for the children, alimоny, and the tickets to athletic events. Defendant appeals.
In his first five assignments of error, the defendant contends the trial court erred in granting summary judgment because of procedural defects relating to the notice of the hearing, the scope of the hearing, and the entry of the order after the hearing. We have reviewed those arguments and have determined that any procedural irregularities did not cause sufficient prejudice to defendant to justify reversal of the order. These assignments of error are summarily overruled.
Defendant next contends that the court’s grant of summary judgment wаs improper because there are genuine issues of material facts present which would preclude judgment for plaintiff, under N.C. Gen. Stat. § 1A-1, Rule 56 (1990). Defendant contends there are genuine issues of fact as to: (1) whether plaintiff’s harassment of defendant and interference with defendant’s visitation with the childrеn in violation of the separation agreement excused defendant’s performance, (2) which Consumer Price Index measurement is to be used in the calculation of child support and alimony increases owing by the defendant, (3) whether plaintiff violated the agreement by cohabiting with a male tо whom she is not married, and (4) whether defendant has the financial ability to make the payments called for under the agreement.
Defendant argues that summary judgment was improper because there was a material question of fact as to whether plaintiff *236 harassed the defendant and interfered with visitation in violation of the separation agreement, thereby excusing his obligations under the agreement. Defendant contends that his payment of child support and alimony was dependent upon plaintiffs compliance with all terms of the separation agreement. Plaintiff responds that there is no provision in the separation agreement which makes defendant’s duty to pay alimony and child support conditional upon plaintiff’s compliance with the agreement. Therefore, plaintiff argues, plaintiff’s nonperformance is not an issue in this case.
Although neither the trial court, plaintiff, nor defendant makes a distinction between the defendant’s obligation to pay alimony and his obligation to pay child support, we find the obligations are distinguishable. For reasons which follow, we hold: (1) the defendant’s obligation to pay child support is not dependent upon plaintiff’s compliance with the visitation, non-harassment and non-cohabitation provisions; and (2) the issue of whether the defendant’s payment of alimony is dependent upon plaintiff’s compliance with those same provisions of the separation agreement is a factual issue to be resolved by determining the intent of the parties when thеy signed the agreement.
The appellate courts of this State have consistently held that the issue of whether a spouse’s right to alimony or maintenance and support is dependent upon that spouse’s compliance with other provisions in the separation agreement is determinеd by the construction of the contract between the parties. For example, this Court has held that the issue of whether payment to the wife for her support is dependent on the agreement’s provision for the husband’s visitation rights is determined by the terms of the agreement and the parties’ intent.
Williford v. Williford,
Applying these rules of law to the case below, we find the trial court erred in granting summary judgment for plaintiff on her claim for arrearages for alimony. Defendant forecast evidence that plaintiff violated provisions of the agreement. The agreement is silent on the question of whether the provisions аre dependent of each other. On remand, the trial court must determine whether defendant’s payment of alimony is dependent upon the plaintiff’s complying with the provisions of the agreement dealing with visitation, non-cohabitation and non-harassment. The burden of proof of integration of the рrovisions is on the defendant.
Hayes,
On the issue of defendant’s obligation to pay child support, we find a different result to be appropriate. Defendant has cited no case, and we are aware of no case from this jurisdiction, which holds that the contractual obligation of one parent to pay child support is dependent upon the other parent’s compliance with provisions of the separation agreement dealing with visitation, non-harassment or non-cohabitation with persons оf the opposite sex.
It is the policy of this State that both parents have a duty to support their minor children.
Plott v. Plott,
The court below concluded that plaintiff was entitled to recover $11,828.48 in arrearages for child support and alimony from the date of each separate breach of those provisions set forth in the separation agreement. From the trial court’s order we cannot tell what рortion of the $11,828.48 is for child support and what portion is alimony. On remand, the trial court must compute the child support arrearage and specifically identify it in its order.
As we noted above, the agreement is silent as to which national publication of the changes in the Consumer Price Index is to be used in the calculation of the child support increase. Defendant also argues that a material issue of fact exists as to what the parties intended by the term “net increases in income” in the separation agreement. Summary judgment is not proper when in
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tent is at issue.
Valdese Gen. Hosp. v. Burns,
The defendant also contended in his brief that summary judgment was improper because he was financially unable to make the payments called for in the аgreement. That contention would be relevant only to future payments and could be considered only after the defendant files a motion in the cause for the trial court to set an amount of child support which differs from that in the separation agreement.
Bottomley v. Bottomley,
Last, defendant does not assign error to the trial court’s order specifically enforcing the agreement provision regarding the athletic tickets. Therefore, we affirm that portion of the trial court’s order.
In summary, we remand the case in order for the trial court to: (1) determine the proper Consumer Price Index measurement to use, (2) calculate the child support arrearage that defendant owes, (3) determine whether plaintiff’s right to receive alimony is dependent on her compliance with the visitation, non-harassment and non-cohabitation provisions, and (4) make factual findings as to plaintiff’s alleged violations of the agreement.
The trial court’s order is
Affirmed in part, reversed in part, and remanded for further proceedings.