307 N.C. 381
N.C.
1983

Lead Opinion

COPELAND, Justice.

The primary issue presented in this case is whether the original consent judgment within a court order of 4 October 1978 which was later amended by a consent judgment within a court order of 20 August 1979, may be modified. This Court has confronted this question of modification of consent judgments several times in the last few years, most recently in Rowe v. Rowe, 305 N.C. 177, 287 S.E. 2d 840 (1982) and White v. White, 296 N.C. 661, 252 S.E. 2d 698 (1979). However, as evidenced by two different analyses employed at the district court and the Court of Appeals, apparently there is some confusion in this area of family law.

For years in numerous decisions this Court has recognized the existence of two types of consent judgments. In the first type of consent judgment, which is nothing more than a contract, “the *385court merely approves or sanctions the payments . . . and sets them out in a judgment . . ." Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E. 2d 240, 242, (1964). These court approved contracts, which are not orders of the court, require the parties to seek enforcement and modification through traditional contract channels. Levitch v. Levitch, 294 N.C. 437, 241 S.E. 2d 506 (1978). “A judgment or decree entered by consent is not the judgment or decree of the court, so much as the judgment or decree of the parties, entered upon its records with the sanction and permission of the court, and being the judgment of the parties it cannot be set aside or altered without their consent.” Harrison v. Dill, 169 N.C. 542, 545, 86 S.E. 518, 519 (1915). Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350 (1926).

In the second type of consent judgment, “the Court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders . . .” that the provisions of the separation agreement be observed. Bunn v. Bunn, 262 N.C. at 69, 136 S.E. 2d at 242. Court ordered consent judgments, which result from the adoption of the separation agreement, are no longer enforced or modified solely under contract law principles. “When the parties’ agreement with reference to the wife’s support is incorporated in the judgment, their contract is susperseded by the Court’s decree.” Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E. 2d 71, 73 (1967).

As an order of the court, the court adopted separation agreement is enforceable through the court’s contempt powers. This is true for all the provisions of the agreement since it is the court’s order and not the parties’ agreement which is being enforced. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964); Rowe v. Rowe, 305 N.C. 177, 287 S.E. 2d 840 (1982). In addition to being enforceable by contempt, the provisions of a court ordered separation agreement within a consent judgment are modifiable within certain carefully delineated limitations. As the law now stands, if the provision in question concerns alimony, the issue of modifiability is determined by G.S. 50-16.9. However, if the provisions in question concern some aspect of a property settlement, then it may be modified only so long as the court’s order remains unsatisfied as to that specific provision. “An action in court is not ended by the rendition of a judgment, but in certain respects is still pending until the judgment is satisfied.” Ahernethy Land and *386Finance Co. v. First Security Trust Co., 213 N.C. 369, 371, 196 S.E. 340, 341 (1938); Walton v. Cagle, 269 N.C. 177, 152 S.E. 2d 312 (1967). Therefore, property provisions which have not. been satisfied may be modified.

We now see no significant reason for the continued recognition of two separate forms of consent judgments within the area of domestic relations law. This conclusion is a result of the realization that while in law those court sanctioned separation agreements in consent judgments create nothing more than a contract, in practice those non-court ordered consent judgments generate great confusion in the area of family law.

Instead of following this dual consent judgment approach in family law, we 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. Insofar as this rule is in conflict with the previous decisions of this Court in Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964) and Levitch v. Levitch, 294 N.C. 437, 241 S.E. 2d 506 (1978), those cases will no longer control. This new rule applies only to this case and all such judgments entered after this decision.

This is not a harsh rule. The parties can avoid the burdens of a court judgment by not submitting their agreement to the court. By not coming to court, the parties preserve their agreement as a contract, to be enforced and modified under traditional contract principles.

Under our new rule every court approved separation agreement is considered to be part of a court ordered consent judgment.

Through this decision we intend to clarify an aspect of family law which has suffered through many years of confusion. However, except as herein stated, consenting parties may still elect any of the options available to them prior to this opinion. *387For example, the parties may keep the property settlement provision aspects of their separation agreement out of court and in contract, while presenting their provision for alimony to the court for approval. The result of such action would be that the alimony provision is enforceable and modifiable as a court order while the property settlement provisions would be enforceable and modifiable under traditional contract methods.

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

Reversed.

Justices Carlton and Meyer dissent from this opinion.



Dissenting Opinion

Justice EXUM

dissenting.

I must dissent from the result reached by the majority. The provisions of the consent judgment that require defendant to pay a specified sum of money to plaintiff over a specified time “regardless of whether or not the parties are divorced or the plaintiff should remarry during said period of time” are so clearly an agreement by defendant to pay a sum certain of money and not to pay alimony “even though denominated as such,” that as a matter of law it may not be modified under our decision in White v. White, 296 N.C. 661, 252 S.E. 2d 698 (1979). In order for provisions for payments in a consent judgment to be modifiable, the consent judgment must first be a true order of the court. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1964). I have no quarrel with the majority’s conclusion that this consent judgment did constitute a judgment of the court. Beyond this I cannot concur in the majority’s opinion.

The second requisite for modifiability of an unexecuted provision for periodic payments

is that the order be one to pay alimony. Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of the statute [G.S. 50-16.9(a)] and thus modifiable if they and other provisions for a property division between the parties con*388stitute reciprocal consideration for each other. As explained by Justice, now Chief Justice Sharp in Bunn v. Bunn, supra, 262 N.C. at 70, 136 S.E. 2d at 243:
‘[A]n agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case. (Citations omitted.) However, if the support provisions and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties.’ (Emphasis added.)

White v. White, supra, 296 N.C. at 666-67, 252 S.E. 2d at 701. It is this second requirement for modifiability, i.e., that the court-ordered payments be alimony, that is not met as a matter of law in this case. The consent judgment is not ambiguous on this point. The district court, therefore, erred in conducting an evidentiary hearing on this question, and the Court of Appeals correctly reversed the district court’s determination that the' payments were modifiable.

The majority unnecessarily departs from well-considered and helpful principles firmly established in our case law which coalesced in Bunn v. Bunn, supra, 262 N.C. 67, 136 S.E. 2d 240, a well-analyzed opinion by Justice, later Chief Justice, Sharp. On the one hand the opinion quotes and cites Bunn approvingly, but then indicates that some portions of Bunn and Levitch v. Levitch, 294 N.C. 437, 241 S.E. 2d 506 (1978), may be inconsistent with the decision and are overruled.

Apparently the majority’s position is that whenever parties enter into a consent judgment* in a domestic relations case any *389unexecuted provisions of the judgment are always modifiable by the court notwithstanding that the parties, for reasons satisfactory to themselves, have agreed that these provisions shall not be modified. The majority chooses, ostrich-like, simply to ignore the fact that consent judgments, even in domestic cases, have attributes of both judgments and contracts. All of our domestic relations cases, so far as my research reveals, have recognized this fact; of course Bunn v. Bunn, supra, does also. Thus this Court said in McCrary v. McCrary, 228 N.C. 714, 719, 47 S.E. 2d 27, 31 (1948):

A judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court. [Citation omitted.] It is not a judicial determination of the rights of the parties and does not purport to represent the judgment of the court, but merely records the preexisting agreement of the parties, [Citations omitted.] It acquires the status of a judgment, with all its incidents, through the approval of the judge and its recordation in the records of the court.

The fact that the consent judgment rests on a contract between the parties makes it “no less a decree of the court.” Bunn v. Bunn, supra, 262 N.C. at 70, 136 S.E. 2d at 243. One of the attributes of a court decree is that it is enforceable by contempt. The court’s power to enforce its judgment by contempt is not lessened by the fact that the judgment was entered by consent. Bunn v. Bunn, supra; Stancil v. Stancil, 255 N.C. 507, 121 S.E. 2d 882 (1961); Smith v. Smith, 247 N.C. 223, 100 S.E. 2d 370 (1957); Edmundson v. Edmundson, 222 N.C. 181, 22 S.E. 2d 576 (1942).

Because, however, a consent judgment is also a contract between the parties, the agreement, unless it is against public policy, Rowe v. Rowe, 305 N.C. 177, 287 S.E. 2d 840 (1982), may not be modified by the court where the parties intend that certain provisions not be modified. Thus the Court said in King v. King, 225 N.C. 639, 640, 35 S.E. 2d 893, 899 (1945):

*390[I]t is a settled principle of law in this jurisdiction that a consent judgment cannot be modified or set aside without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action ....

In Webster v. Webster, 213 N.C. 135, 195 S.E. 362 (1938), the parties entered into a consent judgment whereby the defendant (father) agreed to pay $20 per month for the support of a child born of the marriage of the parties during the time the child was in the custody of the plaintiff (mother). The judgment provided that the plaintiff would have custody of the child except for one week out of each month when the defendant would have custody. Thereafter the plaintiff left the child with the defendant for a total of twenty weeks during a thirty-three week period and the defendant refused to make the support payments during the twenty-week period. The plaintiff began contempt proceedings against the defendant. The trial court, while refusing to hold the defendant in contempt, modified the earlier consent judgment by requiring the defendant to pay $20 per month to the plaintiff irrespective of who had custody of the child. On appeal this Court held that the trial court had no power to modify the agreement in this manner. The Court said, 213 N.C. at 138, 195 S.E. at 364:

To hold, as ruled by the court below, that the defendant is bound to pay the full amount of $20.00 per month for the care of the child, whether the plaintiff keeps the child any part of the time or not, would seem to impose upon the defendant an obligation which he did not assume, and result in the requirement of additional payments for the sole benefit of the plaintiff, with whom a complete settlement has been had. This cannot be held to have been in contemplation of the parties or in accord with their intent.
The judgment of the Superior Court must be reversed with directions that defendant be required to pay to the plaintiff only such sums as may be found to be due her for the support of the child when kept by her in substantial compliance with the agreement, as evidenced by the consent judgment, and not for periods during which the plaintiff may have voluntarily relinquished the custody and support of the child to the defendant in excess of the time specified.

*391Provisions for the payment of true alimony in consent judgments may, of course, be modified because modifiability is an inherent attribute of alimony, G.S. 50-16.9; White v. White, supra; Bunn v. Bunn, supra. The modifiability of alimony cannot be destroyed even by the parties’ agreement because such an agreement is against public policy. Rowe v. Rowe, supra. The parties’ agreement to make periodic payments other than alimony, however, must be enforced according to the terms of their agreement; and, like other provisions of the agreement, may not be modified if the terms of the agreement indicate the parties did not intend modification. White v. White, supra; Bunn v. Bunn, supra.

Modifiability, however, is not a prerequisite to enforceability of a consent judgment by contempt. Henderson v. Henderson (No. 100PA82, filed 11 January 1983). The judgment is enforceable by contempt not because it is modifiable, but because it is a judgment. Likewise, if the parties so agree, it is not modifiable because it is also a contract. I would also hold that enforceability by contempt is an attribute of a judgment that the parties may not change by agreement. Such an agreement would, like an agreement not to modify alimony payments, be against public policy and unenforceable.

Just as the parties cannot deprive the court of its power to enforce a consent judgment by contempt, neither can the court modify an agreement of the parties without their consent unless the agreement is unenforceable as against public policy.

The majority’s holding today does not only overrule Bunn v. Bunn, supra; it also overrules King v. King, supra, Webster v. Webster, supra, and I suppose a legion of other cases which adhere to the principle that consent judgments, being in part a contract of the parties, cannot ordinarily be modified without the parties’ consent. The effect of today’s ruling is to preclude parties in domestic cases from settling their dispute in a manner satisfactory to them, agreeing on the terms of the settlement, having their agreement treated like other ordinary contracts, yet at the same time making the agreement enforceable pursuant to the contempt powers of the court by putting the agreement in the form of a consent judgment. Not only is the majority’s decision in conflict with all the cases which have heretofore spoken on the *392subject, I am satisfied the rule it announces is unwise, if not practically unworkable.

I vote to affirm the Court of Appeals.

Notes

By the term “consent judgment,” I mean to refer only to those judgments in which the court adopts the agreement of parties as its own judgment and, directs performance of the agreement. These are the only kinds of judgments properly called “consent judgments” and the only ones which have caused any difficulty. *389Where a court merely approves the parties’ agreement but does not direct its performance, nothing but a contract results; there is no consent judgment. See Levitch v. Levitch, supra in text; Bunn v. Bunn, supra in text.