179 S.E.2d 113 | N.C. Ct. App. | 1971
Robert E. WILLIFORD
v.
Edna Wolfe WILLIFORD.
Court of Appeals of North Carolina.
Bell, Ogburn & Redding by John N. Ogburn, Jr., Asheboro, for plaintiff appellee.
Miller, Beck & O'Briant by Adam W. Beck, Asheboro, for defendant appellant.
Certiorari Denied by Supreme Court April 6, 1971.
GRAHAM, Judge.
In Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240, Justice Sharp, speaking for the court, stated the following:
"Consent judgments for the payment of subsistence to the wife are of two kinds. In one, the court merely approves or sanctions the payments which the husband has agreed to make for the wife's support and sets them out in a judgment against him. Such a judgment constitutes nothing more than a contract between the parties made with the approval of the court. Since the court itself does not in such case order the payments, *114 the amount specified therein is not technically alimony. In the other, the court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders the husband to pay the specified amounts as alimony.
A contract-judgment of the first type is enforceable only as an ordinary contract. It may not be enforced by contempt proceedings and, insofar as it fixes the amount of support for the wife, it cannot be changed or set aside except with the consent of both parties in the absence of a finding that the agreement was unfair to the wife or that her consent was obtained by fraud or mutual mistake. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487; Howland v. Stitzer, 236 N.C. 230, 72 S.E.2d 583; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Stanley v. Stanley, supra, 226 N.C. 129, 37 S.E. 2d 118; Davis v. Davis, 213 N.C. 537, 196 S.E. 819."
The judgment involved here is clearly of the first type mentioned above, and consequently, it may not be enforced by contempt proceedings. The court ordered that certain of the agreement provisions be incorporated in the divorce decree. This was accomplished when these provisions were written into the face of the judgment. Neither party was ordered to comply with any of the provisions. Thus, the court merely gave judicial approval to the separation agreement between the parties. It was their contract. Davis v. Davis, 213 N.C. 537, 196 S.E. 819. Plaintiff's obligation to pay support to defendant arises from the agreement and not from the judgment. See opinion of Parker, Judge, in Williford v. Williford, N.C.App., 179 S. E.2d 114, filed this date.
Plaintiff argues strenuously that the intent of the parties was that the judgment be enforceable by contempt proceedings. However, we are bound by the language of the judgment itself. A court may not punish a husband for failing to make support payments which he has never been ordered to make.
It has often been called to the attention of the Bar that where it is desired that a judgment for the payment of support be enforceable by contempt, careful wording of the form of the judgment is important. Bunn v. Bunn, supra; Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71; Note, 35 N C.L.Rev. 405 (1957).
Affirmed.
MALLARD, C. J., and PARKER, J., concur.
