Lemons v. Lemons

• Decision Date: 21 September 1993
• Docket Number: No. 9210DC328,9210DC328
• Citation: 434 S.E.2d 638,112 N.C.App. 110
• Parties: Joan Bell LEMONS, Plaintiff v. Jackson B. LEMONS, Jr., Defendant.
• Court: North Carolina Court of Appeals

Page 638

434 S.E.2d 638

112 N.C.App. 110

Joan Bell LEMONS, Plaintiff v. Jackson B. LEMONS, Jr., Defendant.

No. 9210DC328.

Court of Appeals of North Carolina.

Sept. 21, 1993.

John Everette Noland, Jr., Raleigh, for plaintiff-appellee.

Luke D. Hyde, Raleigh, for defendant-appellant.

ORR, Judge.

Defendant argues three issues on appeal. First, he contends that the trial court erred in concluding that the order and consent judgment executed between the parties on 7 December 1978 was modifiable; second, that the trial court erred in determining that the defendant had failed to meet his burden of proof in showing that the above document was integrated and therefore non-modifiable; and third, that the trial court's findings of fact and conclusions of law are not supported by the evidence presented. We disagree with these contentions and accordingly affirm the decision of the trial court.

I.

Court-ordered support payments which are part of an integrated agreement are not subject to modification by the trial court nor do they terminate as a matter of law upon remarriage of the dependant spouse. Marks v. Marks, 316 N.C. 447, 342 S.E.2d 859 (1986). "If support provisions are found to be in consideration for, and inseparable from, property settlement provisions, the support provisions, even if contained in a court-ordered consent judgment, are not alimony but instead are merely part of an integrated property settlement which is not modifiable by the courts." Id. at 455, 342 S.E.2d at 864 (emphasis in original).

As this Court explained in Lemons I:

To resolve the question of whether an agreement is integrated or non-integrated, we look to the intention of the parties. If the agreement contains an unequivocal clause regarding integration or if it contains unequivocal integration language, then this clause or language controls. In the absence of an integration clause and of integration language, the trial court must hold an evidentiary hearing to determine the parties' intent. (Emphasis added.) At the hearing, there is a presumption that the provisions of the agreement are separable. The effect of this presumption is to place the burden of proof ... on the party claiming that the agreement is integrated. In order to prevail, the party claiming the agreement is integrated must rebut the presumption by proving by a preponderance of the evidence that the parties intended an integrated agreement.

Lemons, 103 N.C.App. at 495, 406 S.E.2d at 10 (citations omitted).

Thus, at the evidentiary hearing mandated by this Court in Lemons I, the burden was on the defendant to show that the property settlement clause, which allowed the plaintiff to continue to live in the marital home and which agreed to "convert the formal ownership to tenants in common with rights of survivorship", was given in consideration for the support payments. "If the support and property provisions exist reciprocally, the order is considered to reflect an integrated agreement, and the support payments are not alimony in the true sense of the word...." Hayes v. Hayes, 100 N.C.App. 138, 146, 394 S.E.2d 675, 679 (1990).

Mr. Lemons' testimony included the following:

Q. Part of the dispute in this case has to do with paragraph 7, about who is going to own the property. On page 6, 3011 Mayview Road, would you please read the first sentence of that paragraph to the Court.

A. The plaintiff shall be entitled to occupy and use the family residence located at 3011 Mayview Road, Raleigh, without payment of rent to the defendant as long as she remains unmarried.

Q. Does that have any provision in there that she will be able to occupy this property as long as she shall live?

A. No.

Q. Is there any provision anywhere in here that this property shall be her property without any control from you? Did you discuss that with your attorney?

A. It seems somewhere the property is supposed to be mutually owned.

Q. Do you remember in 1978, prior to signing this order in the court discussing with your attorney whether this property was going to be owned by her or owned by you or owned by both of you mutually or any conditions of its ownership?

A. I think it would be mutually owned; half of it was hers and half of it was mine.

Q. And that was the way you understand it?

A. Yes.

Q. Was that your understanding of how the property was owned when you separated from her; both of you-alls names was on the property?

A. Yes. Both of our names were on the property. Period.

The defendant did not indicate that he expected that the settlement on the marital property related to the support payments to be paid to the plaintiff. His original attorney testified that the intent was to "settle all things, the property included." The Court asked, in response to this statement, if it were not true that only the death of one or the other would settle the ownership of the property. The witness agreed that because the parties intended to create a tenancy in common with right of survivorship, that was the case. Mrs. Lemons testified that she did not intend to enter into an agreement which was not modifiable. Her attorney at the time of the drafting of the agreement also testified that they did not intend to create a non-modifiable agreement.

While the defendant did present some evidence of negotiation of the property issue at about the same time that other issues, such as custody, child support, and alimony were being discussed, the trial court found that this showing was insufficient to overcome the presumption that the agreement was separable. Consequently, the agreement could be modified by the court upon a showing of changed circumstances. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

II.

We further find that there is no merit in defendant's final argument that there was insufficient...