Bunn v. Bunn, 454
| Decision Date | 20 May 1964 |
| Docket Number | No. 454,454 |
| Citation | 136 S.E.2d 240,262 N.C. 67 |
| Parties | Christine Carpenter BUNN v. Harold BUNN. |
| Court | North Carolina Supreme Court |
Alfonso Lloyd and R. P. Upchurch, Raleigh, for plaintiff.
No counsel contra.
'Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband by order of court in an appropriate proceeding, and is either temporary or permanent.' Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118. 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, 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 nutual 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; ystanley v. Stanley, supra; Davis v. Davis, 213 N.C. 537, 193 S.E. 819. Of course, neither agreements nor adjudications for the custody or support of a minor child are ever final. Parties may never withdraw children from the protective supervision of the court. Fuchs v. Fuchs, supra; Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721; Holden v. Holden, supra.
A judgment of the second type, being an order of the court, may be modified by the court at any time changed conditions made a modification right and proper. The fact that the parties have agreed and consented to the amount of the alimony decreed by the court does not take away its power to modify the award or to enforce it by attachment for contempt should the husband wilfully fail to pay it. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882; Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Davis v. Davis, supra; Dayer v. Dyer, 212 N.C. 620, 194 S.E. 278. Alimony is subject to modification and to enforcement by contempt proceeding if the situation so requires.
When called upon to alter the terms of a consent judgment, or to enforce its provisions by contempt proceedings, the question for the court in each case is whether the provision for the wife contained therein rests only upon contract or is an adjudication of the court. If it rests on both, it is no less a decree of the court. As pointed out in a note in 35 N.C.L.Rev. 405, 'the subleties in the form' of a consent judgment for support payments to the wife 'play a major role in determining the subsequent rights of the parties' and, if the judgment is to be of 'practical value to the wife other than as a judicial affirmation of the contract existing between the parties, * *. it is advisable that the attorney carefully word the form of the judgment so as to preserve in the court further rights in the cause.' See also 40 N.C.L.Rev. 530.
Needless to say, a judgment which purports to be a complete settlement of all property and marital rights between the parties and which does not award alimony within the accepted definition of that term is not subject to modification even though it adjudges that the wife recover a specific money judgment. This is a consent judgment in its technical sense. Armstrong v. Aetna Insurance Co., 249 N.C. 352, 106 S.E.2d 515; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209. However, an 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. Briggs v. Briggs, 178 Or. 193, ...
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