Henderson v. Henderson

• Decision Date: 11 January 1983
• Docket Number: No. 100PA82,100PA82
• Citation: 298 S.E.2d 345,307 N.C. 401
• Court: North Carolina Supreme Court
• Parties: Alice Jean HENDERSON v. Gary M. HENDERSON.

Page 345

298 S.E.2d 345

307 N.C. 401

Alice Jean HENDERSON v. Gary M. HENDERSON.

No. 100PA82.

Supreme Court of North Carolina.

Jan. 11, 1983.

Goldberg & Anderson by Frederick D. Anderson, Wilmington, for defendant-appellant.

W.G. Smith by Bruce H. Jackson, Jr., Wilmington, for plaintiff-appellee.

MEYER, Justice.

Defendant-appellant presents only one issue on appeal, cast in the following language:

I. Does a wife's failure to allow a husband visitation with his son, excuse husband's duty to pay periodic support payments to wife under a consent judgment, which specifically states that each party's respective duties thereunder are interdependent and not independent, that it is an integrated agreement of the parties, that it may not be modified without the express written consent of the parties, and that it is a full and final settlement of all property and marital rights between the parties?

In so styling the issue, defendant places this Court in the anomalous position of having to decide a question of law based on an underlying assumption, the non-modifiability of the alimony-type provision. Because the assumption and any legal implications arising from it are in no way pertinent to our holding, our discussion will focus only on the enforceability issue. The modifiability issue is not determinative of the question before us. Thus, we have purposely not quoted or summarized the provisions of the judgment relating to the periodic payments for the support of the wife because the nature of those payments as "alimony" or as part of an "integrated settlement" or their "modifiability" or "non-modifiability" does not affect their enforceability by contempt as court-ordered payments under a court-adopted consent judgment. It is perhaps because of some misinterpretation of the language in some of our prior opinions that attorneys repeatedly argue to this Court that if the support provisions of a court-ordered consent judgment are "modifiable" the judgment is enforceable by contempt but if they are "not modifiable" the judgment is not enforceable by contempt. We wish to dispel any such notion and to make it clear now that modifiability and enforceability are not interdependent.

In Bunn v. Bunn, 262 N.C. 67, 70, 136 S.E.2d 240, 243 (1964), we stated that "any judgment which awards alimony, notwithstanding it was entered by the consent of the parties, is enforceable by contempt proceedings should the husband wilfully fail to comply with its terms. If the judgment can be enforced by contempt, it may be modified and vice versa." (Emphasis added). In White v. White, 296 N.C. 661, 665, 252 S.E.2d 698, 701 (1979), we stated that a court-adopted consent judgment "is both modifiable and enforceable by the court's contempt power." (Emphasis added). White, like Bunn, involved the modification of a provision which had been determined to be "alimony" and thus modifiable. The rule is more clearly stated in our most recent decision of Rowe v. Rowe, 305 N.C. 177, 183, 287 S.E.2d 840, 844 (1982), which points out that when "the court adopts the agreement of the parties as its own and orders the supporting spouse to pay the amounts specified as alimony ... [the] order is enforceable by the court's contempt powers." This Court further noted that "[o]rdinarily it is also modifiable." Id. (Emphasis added). We read the language in these cases as establishing a rule which merely states that a payment of "alimony" in a court-ordered judgment is enforceable by civil contempt, and, as we stated in Rowe, it is also modifiable by virtue of our holding in Bunn, and now as a result of G.S. § 50-16.9. We have never held, nor do we now hold, that the court's power to enforce its orders in a consent judgment is dependent upon whether the provision is subject to modification. It was unnecessary for the Court of Appeals to determine or even discuss the issue of the modifiability of Judge Lambeth's order.

A court-adopted consent judgment in a domestic setting has been variously characterized as a species of contract which has been superseded by the court's adoption of the agreement between the parties "as its own determination of their respective rights and obligations ...." Bunn v. Bunn, 262 N.C. at 69, 136 S.E.2d at 241. See Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840; White v. White, 296 N.C. 661, 252 S.E.2d 698; Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). So far as the support payments to the wife are concerned, the agreement of the parties becomes an order of the court, thus losing its identity as a contract.

Once the court adopts the agreement of the parties and sets it forth as a judgment of the court with appropriate ordering language and the signature of the court, the contractual character of the agreement is subsumed into the court-ordered judgment. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). At that point the court and the parties are no longer dealing with a mere contract between the parties. ¹

The power of the court to enforce its judgment is no less and no greater for a court-adopted consent judgment than for a judgment resulting from a jury verdict in a hotly contested adversary proceeding. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961); Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576 (1942).

It is clear beyond any question that Judge Lambeth's judgment of 13 March 1980 is a court-adopted consent judgment. As such, the court may, upon a showing of willful failure to comply, enforce such judgment by civil contempt. A court-ordered consent judgment is enforceable by civil contempt notwithstanding the fact that it contains unequivocal language that it is non-modifiable. Hence here Judge Lambeth, in his subsequent order of 15 December 1980, acted within his authority in ordering both parties to comply with the 13 March 1980 judgment.

Civil contempt is based upon acts or neglect constituting a willful violation of a lawful order of the court. A failure to obey an order of the court cannot be punished by attachment for civil contempt unless the disobedience is willful. It is well settled that one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. See G.S. § 5A-21. The trial court must find as a fact that the defendant presently possesses the means to comply. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

In finding of fact number 8, Judge Lambeth found that defendant's failure to make the payments in question "has been willful and without just cause or excuse." In addition, finding of fact number 10 is devoted exclusively to the issue of ability to pay and willfullness of defendant's failure to pay:

10. Defendant is an able-bodied man, employed as a pilot for Piedmont Airlines. Defendant is under no legal, mental or physical disabilities which precludes him from complying with the alimony provisions of the March 13, 1980, Judgment which Defendant consented to. The Defendant had the present ability to comply with the alimony provisions of the March 13, 1980, Judgment when it was entered. There have been no change of circumstances as to the Defendant's ability to comply with said provisions since entry of the March 13, 1980, Order. Defendant has the present ability to comply with the alimony provisions but has willfully failed and refused...