Walters v. Walters

IN THE SUPREME COURT Walters v. Walters .44-caliber bullets magnum pistol, bought

Defendant borrowed a friend, weapon. for the and test fired the Then he lulled his gun, victim, security by into a sense of beer with drinking false him. killed gun He returned from the bathroom with hand and time, one in his victim with shot. At the defendant had malice heart because his woman had left him for the victim. limit, statutory was within the supported sentence 15A-1444(a1)(Cum. properly judge, evidence before the N.C.G.S. 1981), Supp. and does not constitute abuse discretion. State (1922). Sudderth, 753, 114 judge 184 N.C. S.E. 828 The trial did 15A-1340.4(a) by considering not violate the evidence N.C.G.S. and as an premeditation aggravating deliberation factor.

Affirmed. (now ZIEGLER) WALTERS WALTERS v. MELVIN CECIL JEANETTE ROYCE

No. 30PA82 1983) (Filed January Alimony separation agreements approved by § court are court 19.5— Divorce and judgments judgment approach oi dual consent ordered —abolishment law, family judgment approach following Instead of the dual separation bring their a rule that whenever the the Court established approval, longer be for the it will no agreements before the court court’s agreements approved parties. separation All as a contract between treated will treated ordered judgments of the court as court the court as separation agreements are and en- ordered modifiable judgments. These court contempt powers of in the manner as the court same forceable relation judgment in a case. other domestic Meyer dissent. Justices Carlton dissenting.

Justice Exum discretionary review of a decision petition ON defendant’s 545, 284 S.E. 2d App. Appeals, of the Court Whichard, J., Hill, J., concurring), J. Vaughn, with (opinion Black, D.J., entered remanding vacating Court, Session District Civil December MECKLENBURG County. THE IN SUPREME COURT provi-

The defendant seeks this action have the separable of a declared in accordance judgment sions consent. with the determination at district court. Such a result would court to treat cash periodic payments provi- enable trial alimony. If sion within the consent as treated as 50-16.9(b) alimony the could be terminated under G.S. payments since the has remarried. February

These were married 18 1956 and parties separated alimony 1977. lite pendente December Plaintiff was awarded May year jury on 1978. Later that same on October 1978 a 8. permanent found the was entitled to as the of the defendant. Before the court entered a dependent spouse alimony the permanent parties on the issue of went to agreed table and to a consent At the re- bargaining was placed of these within an order quest County which was of the District Anson filed October appeared 1978. The consent as it the court’s order was as follows:

NOW,THEREFORE,by with the consent of the parties hereto, affixed it is signatures as evidenced Adjudged Decreed, sent, Ordered, And follows: Walters, defendant, Royce hereby 1. The Melvin to the pay plaintiff, ordered and directed to Cecil Jeanette Walters, alimony, to constitute the sum of said One payments month, ($1,000.00) Dollars per beginning Thousand October (62) thereafter, months for sixty-two and continuing (63) to be sixty-three payments, payments a total of said advance, 1st, 1978, October commencing made quarterly to be payable thereafter on payments and the quarterly 1st, 1st, July 1st 1st and October of each January April shall been all of the have year successive until defendant, however, made, Royce Melvin provided, Walters, weeks the due date following allowed six shall be same being make the without any in which to payment of this Order. default of the Walters, defendant, will Royce simultane- 2. The Melvin simple execute Judgment a fee ously entry with the of this in and to title and interest warranty right, for all of his deed was Township, Burnsville that that real located in estate January deed dated to this action conveyed 23rd, 1968, Book page recorded in Deed however, County. conveyance, This shall of Anson Registry ad valorem taxes ex- liens and subject outstanding be conveyance. isting at time Judg- of this that 3. It is further Ordered by contempt proceedings. ment shall be enforceable Jeanette plaintiff, 4. It further Ordered that Cecil Walters, enjoy that certain motor to use and permitted by her husband until her provided vehicle heretofore is made. as herein provided first periodic payment as herein provided that the payments 5. It is understood of plaintiff regardless by the defendant shall be made plaintiff divorced or the the are whether or not of time. period said remarry during should the court requesting a motion filed plaintiff On June unilaterally the reducing in civil for contempt find defendant $1,000 in violation of the $500 her from to monthly to payments its through its order to enforce agreed order. The court court’s com- jailed until he ordered the defendant contempt powers 1979, the August after judgment. On with the consent plied $1,000 inability payments to make an defendant asserted month, $500 to a month payments reduced the court the district 101 months pursuant payment time for while the extending remar- April plaintiff Then on 19 judgment. another consent Plaintiff making payments. ceased the defendant ried and judg- modified consent of the now sought enforcement again once re- defendant contempt power. the court’s through ment alimony payments the to terminate with a motion sponded 5046.9(b). with G.S. accordance the Black denied Judge 18 December In order filed request defendant’s he allowed but contempt motion for plaintiff’s plaintiff the hearing At this alimony payments. the to terminate even remar- upon to the payments entitled that she was argued of the consent with the in accordance riage However, itself from the consent aside her claim that support any evidence to present failed consent viewing the In non-modifiable. were payments on the issue of ambiguous the instrument Judge Black found were As a reciprocal. whether White, that under White v. result the court determined (1979), had failed to suffi- present the plaintiff separability provi- presumption cient evidence to rebut the presumption Under supra. sions as set out which is both cash be treated periodic to G.S. 50-16.9. pursuant modifiable and terminable of Appeals Plaintiff to the North Carolina Court appealed 1981. In an opinion 15 October filed 17 argued where the case was vacated and Appeals November remanded Black’s of Oc- Judge judgment holding settlement which no integrated tober 1979 to be an had alimony. holding, Ap- for In so the Court of separate provision felt was peals though ambiguous that even the consent of separability pro- had presumption rebutted the provisions visions her of what meant. explanation Discretionary for petition The defendant then filed this Court 4 May Review which was allowed 1982.

James, Diehl, Diehl, Jr., & P.A. William K. McElroy Katherine Holliday, defendant-appellant. S. for and Larry Harrington, Thomas D. Windsor plaintiff- appellee. COPELAND, Justice. in this case is whether primary presented issue of 4 consent within a court order October 1978

original judgment by which was later amended a consent within a court 1979, may of 20 modified. This August order be Court has consent judgments fronted this of modification of several question Rowe, years, recently in times the last few most Rowe v. 305 177, 661, 840 v. N.C. 287 S.E. 2d and White 296 N.C. (1979). However, 252 S.E. 2d 698 as evidenced two different analyses at the district court and the employed Appeals, Court is in this apparently family there some confusion area of law. years For numerous decisions Court has recognized In types judgments. the existence of two of consent the first type contract, of consent which is more than “the judgment, nothing 385 merely court or approves sanctions the . . . and sets Bunn, 67, 69, them out . . ." 262 Bunn v. 136 N.C. (1964). 240, 242, contracts, S.E. 2d These court approved which are court, not orders of the require parties seek enforcement and modification through traditional contract channels. Levitch v. (1978). Levitch, 437, 294 241 S.E. N.C. 2d 506 “A judgment or decree entered is not the or decree of the court, so much as the judgment or decree of the parties, entered upon court, its records with the sanction permission being judgment of the it cannot be set aside or Dill, 542, 545, altered without their consent.” Harrison v. 169 N.C. (1915). 518, Ellis, 216, 86 S.E. Ellis v. N.C. S.E. 350 (1926). In the type second of consent judgment, “the Court adopts the agreement of as its own determination of their respective rights obligations and orders . . .” that the provi- sions of the separation agreement be observed. Bunn v. 69, at 136 S.E. 2d at 242. ordered consent judgments, which result from the adoption separation agreement, are no longer solely enforced or modified under contract law prin- ciples. “When parties’ agreement with reference to the wife’s support is in the incorporated contract susperseded Mitchell, by the decree.” Court’s Mitchell v. 270 N.C. (1967). 253, 256, 154 S.E. 2d

As an order of the the court adopted separation agree- ment is enforceable the court’s contempt powers. This is true for all the since it is the court’s order and not the parties’ agreement which is being enforced. (1964); Bunn Rowe, 136 S.E. 2d 240 Rowe v. (1982). In addition to en- being forceable contempt, a court ordered separa- tion agreement within a consent judgment are modifiable within carefully stands, certain delineated As limitations. the law now if the provision in question alimony, concerns issue of modifiability However, determined G.S. 50-16.9. if provi- sions in settlement, question concern some of a aspect then it may only so long modified the court’s order remains unsatisfied as to that specific provision. “An action in court is not ended the rendition of a but in certain respects still pending until the judgment is satisfied.” Ahernethy Land and

386 369, 371, Co., 196 213 Trust Security v. First Finance Co. (1938); 152 S.E. 2d v. Cagle, Walton S.E. (1967). Therefore, which have been not. modified. satisfied recogni- continued reason for the significant see no

We now area within the judgments forms of consent two separate tion of is a result of the law. This conclusion relations of domestic separation sanctioned in law those court while realization that more than a con- nothing create judgments in consent agreements tract, judgments ordered consent those non-court practice in family area of law. in the great confusion generate judgment approach this dual consent following Instead law, parties whenever establish a rule that family we now before the court for court’s separation agreements their bring as a contract between the be treated longer it will no approval, by the court as approved agreements All separation parties. to-wit, similarly, as court will be treated the court judgments of agreements, separation These court ordered judgments. ordered modifiable, and enforceable are judgments, as consent court, any as judg- same manner other powers of tempt as this rule is in conflict relations case. Insofar in a domestic ment Bunn decisions of this Court previous with Levitch, Levitch v. 136 S.E. 2d N.C. 437, (1978), This longer will no control. cases 241 S.E. 2d those judgments and all such entered only to this case new rule applies this decision. after avoid the burdens of rule. The can a harsh

This not to the court. submitting not their a court as a parties preserve By coming contract, traditional contract and modified under enforced to be principles. separation every approved agree- rule court new

Under our judg- ordered consent of a court part to be ment is considered ment. family clarify aspect we intend to decision

Through many years of confusion. suffered law which has However, stated, may still consenting herein except opinion. to this prior to them available options elect IN THE SUPREME COURT For example, the parties may keep property settlement provi- sion aspects of their separation out of court and in con- tract, while presenting their provision alimony for to the court for approval. The result of such action alimony would be that the pro- vision is enforceable and modifiable a court order while the property settlement provisions would be enforceable modifiable under traditional contract methods.

We therefore hold that the of the opinion of Appeals Court reversed and this case remanded to that court for a remand the District County entry for Mecklenburg of the original judgment.

Reversed. Meyer

Justices Carlton dissent from this opinion. Justice EXUM dissenting.

I must dissent from the result reached majority. consent judgment that require defendant to pay specified a sum of money to over specified a time “regardless whether or not are or divorced remarry should during period clearly said time” are so an defendant to pay money a sum certain of such,” alimony not to pay “even though denominated as that as a matter of law it not be modified under our decision White (1979). S.E. 2d 698 In order for provi- modifiable, sions for in a consent to be must first be true order the court. Bunn v. (1964). I have no quarrel with the majority’s conclusion that this consent con- judgment did stitute Beyond of the court. this I cannot concur majority’s opinion. modifiability

The second requisite an unexecuted provi- sion for periodic payments alimony.

is that the order be one to Even pay though such, denominated as to a periodic support payments depend- may spouse meaning ent within the 50-16.9(a)] they statute and thus modifiable if and other [G.S. for a division between the Walters

Walters v. for each other. As explained consideration reciprocal stitute Justice, in Bunn v. supra, Sharp Justice now Chief 70, at 243: 136 S.E. 2d at N.C. of and property rights for the division agreement ‘[A]n alimony may be included as of payment for the an order In such in a consent separable provisions beyond would be the of property the division event the order for future but change, of the court power subject be to modifica- of would installments omitted.) (Citations However, case. tion in a proper if and the division the support of so the consideration that entire stitute a reciprocal be a destroyed would agreement modification of are not they separable support provision, (Em- both parties.’ without the consent be changed of added.) phasis 666-67, at 252 S.E. 2d at 701. It is White v. supra, i.e., modifiability, that the court- this second requirement alimony, is not met a matter of law ordered that payments ambiguous is not on this point. in this case. The consent therefore, evidentiary in conducting erred The district Appeals correctly and the on this Court hearing question, determination that the' court’s reversed district were modifiable. unnecessarily from departs well-considered majority established in our case law co- firmly which

helpful principles 136 S.E. in Bunn v. N.C. 2d supra, alesced Justice, Justice, later well-analyzed Sharp. Chief On opinion cites Bunn approvingly, one hand the but opinion quotes Levitch, Bunn and Levitch v. portions then indicates that some (1978), may be inconsistent with the and are overruled. decision is that whenever majority’s position

Apparently domestic into a consent relations case judgment* enter * only By judgment,” judgments I to refer to those the term “consent mean and, adopts parties as its own which the court directs only agreement. judgments properly kinds of performance of the These are the any difficulty. only judgments” ones which have caused called “consent and the unexecuted always are modifiable the court notwithstanding that for reasons parties, satisfac- themselves, tory to agreed have that these provisions shall not be chooses, ostrich-like, modified. The majority simply ignore cases, fact that consent judgments, even in domestic have at- tributes of both judgments and contracts. All of our domestic cases, reveals, my relations so far as research have recognized fact; of course Bunn v. supra, does also. Thus this 714, 719, McCrary McCrary, said in S.E. 2d (1948): 27, 31 A judgment is the parties, decree, entered the record with upon the sanction of the court. It is not a judicial determination [Citation omitted.] rights and does not purport represent court, the of judgment merely the but records the pre- existing agreement of the parties, It ac- [Citations omitted.] incidents, the quires status of a with all its the approval of the and its in judge recordation the records of the court.

The judgment fact that the consent rests on a contract be tween the it “no parties makes less a decree of the court.” Bunn 70, v. 262 at 136 S.E. 243. supra, N.C. 2d at One of the at of that it is by tributes a court decree is enforceable contempt. judgment by The court’s to enforce its is not power contempt by judgment by lessened the fact that the was entered consent. 507, Stancil, Bunn v. Stancil v. 255 121 S.E. 2d supra; N.C. (1961); 223, (1957); Smith, 882 Smith v. 100 S.E. 2d 370 (1942). Edmundson, 181, Edmundson v. 22 S.E. 2d 576 N.C. Because, however, a consent is also a contract be- judgment it agreement, against public tween the the unless is parties, Rowe, 177, (1982), may Rowe v. policy, N.C. not be modified the court where the intend that cer- in v. King not be modified. Thus the said tain Court (1945): 893, S.E. 2d King, merely per- approves parties’ but does not direct its a court the Where formance, results; Levitch nothing there is no consent See but a contract Levitch, text; Bunn, supra in text. supra in Bunn v. v.

Walters Walters jurisdiction of law in this that a con- principle is a settled [I]t or set aside without the sent cannot modified judgment thereto, for fraud or mutual except consent of the mistake, vacate such proper procedure and the to .... an action independent (1938), Webster, 213 195 S.E. 362 In Webster v. the whereby a consent the defendant parties entered into (father) per support $20 month for the child agreed pay time the child was marriage parties during born of the the (mother). custody plaintiff judgment provided The the custody except the would have of the child for one plaintiff that custody. have week out of each month when the defendant would left child with the defendant for a Thereafter the twenty thirty-three week during period total of weeks and the support payments during defendant refused to make the twenty-week contempt proceedings The period. plaintiff began refusing defendant. The trial while to hold the against defendant modified the earlier consent contempt, $20 ir- pay per the defendant month requiring custody the child. appeal of who had On Court respective modify court had no power held that the trial said, 138, 195 S.E. 364: 213 N.C. at at this manner. below, hold, defendant as ruled the court that To $20.00 full month for the care per bound to amount pay child, child plaintiff keeps part whether not, upon would seem to the defendant impose the time or assume, result in the require- which he did not obligation for sole benefit of the plain- ment of additional the tiff, settlement has been had. This complete with whom a contemplation parties have been in of the cannot be held to their intent. or accord with must be reversed Superior

The of the judgment pay to required that defendant with directions may be due her for sums as be found to only such com- by her in substantial kept child when the of the support by the consent as evidenced pliance agreement, with the may which the during periods and not for custody of the support voluntarily have relinquished specified. in excess of the time child to defendant Provisions the payment alimony of true in consent course, may, judgments be modified because modifiability is an 50-16.9; White, inherent alimony, attribute of G.S. v. White supra; Bunn, v. Bunn supra. modifiability The cannot be destroyed by even the parties’ agreement because such an agree- Rowe, is against ment public policy. Rowe v. The supra. parties’ agreement to make periodic payments other alimony, than however, must be enforced according to the terms of their agree- ment; and, like other may of the agreement, not be modified if the terms of the agreement parties indicate the did not intend modification. White v. v. supra; Bunn supra. however,

Modifiability, is not a to prerequisite enforceability (No. by of a consent judgment contempt. Henderson v. Henderson 1983). 100PA82, 11 January filed The by enforceable modifiable, contempt not because it is but because it is a judg- Likewise, ment. if parties so agree, it not modifiable because I it is also a contract. would also hold that enforceability is an attribute a contempt that the parties would, change

not Such an agreement. agreement like an agreement modify alimony payments, be against public policy and unenforceable. deprive

Just as the cannot power court of its enforce a contempt, neither can the court modify agreement without their consent unless agreement against is unenforceable as public policy. today majority’s holding only does not overrule Bunn v. supra; King it also overrules Webster v. King, supra, Webster, and I cases which suppose legion of other supra, judgments, being adhere to the that consent principle part ordinarily be modified without parties, contract of the cannot today’s ruling preclude parties consent. The effect of is to parties’ in a manner satisfac- settling dispute in domestic cases from their settlement, them, tory agreeing having on the terms contracts, yet ordinary at the treated like other agreement enforceable to the con- making pursuant same time in the form putting of the court tempt powers only majority’s is the decision a consent Not spoken cases which have heretofore on flict with all the IN 392 THE SUPREME COURT

Taylor P. v. J. Stevens Co. unwise, it subject, prac- I am satisfied the rule announces is if not tically unworkable.

I to affirm of Appeals. vote the Court (F. TAYLOR, Employee, Plaintiff; Taylor, W. K. LUCY successor interest TAYLOR, deceased) plaintiff, W. J. P. LUCY STEVENS COM now COMPANY, PANY, Employer, MUTUAL LIBERTY INSURANCE and Car rier, Defendants No. 440A82 1983) (Filed January compensation permanent disability § 68— 1. Master and Servant workers’ from — occupational compensation disease not increased statute —maximum 97-29.1, only legislature enacting intended to In G.S. increase weekly totally permanently prior of claimants who were disabled benefits $12,000.00 compen- July to 1 1973 but did intend to maximum increase totally provided for in when sation 97-29 written became G.S. occupational August from an disease 1963. disabled appeal compensation attorney § 99— Master workers’ fees for 2. and Servant — appellate court —discretion of Industrial Commission attorney has the fees for The Industrial Commission discretion award appeal appellate an work with an before rendered connection deny grant award will not be disturbed in the absence of decision to or such an 97-88; 97-88.1. G.S. abuse of discretion. G.S. dissenting. Justice Carlton 7A-30Í2)from pursuant to G.S. right

APPEAL as a matter of App. Appeals decision of J., J., Whichard, Clark, with concurring and (opinion Becton, J., Industrial holding which affirmed a dissenting), Commission. in which worker’s claim compensation

This concerns a appeal compensation to recover extended seeks both plaintiff-appellant fees under attorneys’ 97-29.1 and reasonable G.S. benefits under at 300 May reported In a decision dated 97-88. G.S. (1980), of Appeals’ 2d we a Court upheld S.E. defendant’s, P. and Com- J. Stevens which established decision to the In- We the case plaintiff. remanded liability pany,

Case Details

Case Name: Walters v. Walters

Court Name: Supreme Court of North Carolina

Date Published: Jan 11, 1983

Citation: 298 S.E.2d 338

Docket Number: 30PA82

Court Abbreviation: N.C.