Marks v. Marks

• Decision Date: 06 May 1986
• Docket Number: No. 475PA85,475PA85
• Citation: 342 S.E.2d 859,316 N.C. 447
• Court: North Carolina Supreme Court
• Parties: Ellen Spear MARKS v. Edgar Seymour MARKS.

Page 859

342 S.E.2d 859

316 N.C. 447

Ellen Spear MARKS v. Edgar Seymour MARKS.

No. 475PA85.

Supreme Court of North Carolina.

May 6, 1986.

Hunter, Wharton & Howell by John V. Hunter III, Raleigh, for plaintiff-appellee.

Nichols, Caffrey, Hill, Evans & Murrelle by William D. Caffrey and Richard L. Pinto, Greensboro, for defendant-appellant.

MEYER, Justice.

On 30 April 1974, plaintiff and defendant entered into a "Deed of Separation" which resolved questions of child custody and support, division of marital property, alimony, and certain other rights as set forth therein. Shortly thereafter, on 15 May 1974, plaintiff filed a civil action, No. 74 CvD9434, in District Court, Guilford County, for child custody, child support, and alimony. On 21 May 1974, a consent order was entered in that action, which stated, inter alia:

[I]t is ORDERED, ADJUDGED and DECREED:

A. That the Deed of Separation duly executed by plaintiff and defendant on April 30, 1974, is hereby incorporated by reference in its entirety in this Order, and, by consent of the parties, is a part of the judgment of this Court; and that its terms shall control and determine alimony, child support, attorneys' fees paid by defendant for the benefit of plaintiff and all other matters set out therein; but that said Deed of Separation is not merged in this Order to the end that a final termination of this cause, if such should occur, will leave the parties free to enforce said Deed of Separation by independent action.

The alimony award in the consent order, as detailed in the incorporated Deed of Separation, provided that defendant would transfer to plaintiff his one-half interest in the parties' homeplace in lieu of alimony payments for the period of the first seven years. The value of defendant's interest in the property was $105,000; it represented defendant's alimony obligation to plaintiff in the amount of $15,000 per year for the seven-year period. After this period, future alimony would be determined by a paragraph entitled "Permanent Alimony" pursuant to which defendant was to pay to plaintiff a sum equal to twenty-seven and one-half percent of his gross personal income, with a minimum payment of $15,000 per year, terminable upon plaintiff's death or remarriage.

On 22 December 1981, plaintiff instituted a separate civil action, 81CvD8326, also in the District Court, Guilford County, for breach of contract seeking to recover alimony arrearages and an order of specific performance of the Deed of Separation. Defendant answered and counterclaimed in this contract action and also filed a motion in the cause in the alimony action, 74CvD9434, to modify that order for alimony on grounds of changed circumstances.

Both plaintiff's contract action and defendant's motion in the alimony action were calendared for hearing during the week of 25 July 1983. The parties stipulated that the question of the modifiability of the alimony provisions of the Deed of Separation as incorporated into the consent judgment should first be determined. The parties further stipulated that if the trial court ruled in favor of plaintiff (that the alimony provisions are not modifiable), the court would hear evidence on plaintiff's breach of contract action; if the trial court ruled in favor of defendant (that they are modifiable), the court would hear evidence on defendant's motion to modify his alimony obligations. Following a hearing at the 25 July 1983 Civil Session of District Court, Guilford County, Judge Joseph R. John entered findings of fact and conclusions of law, and ordered:

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the alimony provisions set forth in the "Deed of Separation" executed on April 11, 1974, as incorporated into, adopted and ordered by the Consent Judgment entered on May 21, 1974, be and the same are hereby held to be modifiable as a matter of law upon a showing of changed circumstances; and that this cause (74 CvD 8326) [sic] be and same is hereby held open pending a hearing on the question of changed circumstances for a final determination of defendant's Motion to Modify Order for Alimony in accordance with this order and the stipulations of the parties.

This the 9th day of Nov., 1983, nunc pro tunc 7/25/83.

s/ JOSEPH R. JOHN

Presiding District Court Judge

In December 1983, pursuant to the above referenced order, lengthy evidentiary hearings were held in 74CvD9434 on the question of whether circumstances had changed to such a degree so as to warrant a modification of the alimony provisions of the 1974 consent judgment. On 30 March 1984, Judge John entered an order finding "a significant and sufficient change in circumstances ... which warrants a modification of the alimony award encompassed in the Consent Judgment of May, 1974." Judge John ordered that defendant's obligation to pay alimony be terminated completely as of 8 January 1982.

Plaintiff appealed the entry and signing of the March 1984 order, and the Court of Appeals reversed the judgment in Marks v. Marks, 75 N.C.App. 522, 331 S.E.2d 283. The panel below concluded that the alimony provisions contained in the consent judgment were not alimony at all, but were "actually a part of an overall property settlement by the parties; that they [were] not separable from the other provisions of the Deed of Separation; and that modification of the alimony provisions now would destroy the agreement." Id. at 529, 331 S.E.2d at 287. Having found error in the trial court's determination that the consent judgment was modifiable, the panel below did not address assignments of error regarding changed circumstances and termination of defendant's spousal support obligations.

For the reasons set forth below, we reverse the decision of the Court of Appeals and reinstate the 30 March 1984 judgment of the District Court, Guilford County.

We note at the outset that this case is governed by the law as it existed prior to our decision in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338, reh'g denied, 307 N.C. 703, 301 S.E.2d 397 (1983). The holding in Walters ¹ was expressly made prospective only and applies to judgments entered on or after 11 January 1983. The consent judgment in this case was entered in May 1974. Thus, because the following discussion involves pre-Walters law, this opinion will have limited public interest.

N.C.G.S. § 50-16.9(a) provides:

§ 50-16.9. Modification of order.

(a) An order of a court of this State for alimony or alimony pendente lite, whether contested or entered by consent, may be modified or vacated at any time, upon a motion in the cause and a showing of changed circumstances by either party or anyone interested. This section shall not apply to orders entered by consent before October 1, 1967.

N.C.G.S. § 50-16.9(a) (1984). This statutory provision is satisfied when the following three elements are met:

(1) The court has jurisdiction over the parties and the agreement sought to be modified. Jurisdiction is attained over the agreement when the support provisions of the agreement constitute an order of the court.

(2) The support provisions ordered by the court constitute true "alimony or alimony pendente lite" and are not in fact merely part of an integrated property settlement. The support provisions of the agreement must be separable from the property settlement provisions.

(3) The party seeking modification meets his or her burden of demonstrating such a change in circumstances as would warrant a modification of the alimony or alimony pendente lite obligations imposed by court order.

See White v. White, 296 N.C. 661, 666-67, 252 S.E.2d 698, 701 (1979); Walters v. Walters, 307 N.C. 381, 387-88, 298 S.E.2d 338, 342-43 (1983) (Exum, J., dissenting); Note, Domestic Relations--Presumed Separability of Support and Property Provisions in Ambiguous Separation Agreements--White v. White, 16 Wake Forest L.Rev. 152, 156 (1980).

A. ORDER OF THE COURT.

Prior to our decision in Walters, this Court recognized two types of consent judgments. In the first type, which is nothing more than a contract, the court merely approves 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 are not orders of the court. Id. 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. Id. "When the parties' agreement with reference to the wife's support is incorporated in the judgment, their contract is superseded by the court's decree." Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967). Walters abolished this bifurcated view of consent judgments and thus prospectively alleviated the complex analysis previously required by Bunn and its progeny in determining whether the first element ("court order" confers jurisdiction) of N.C.G.S. § 50-16.9(a) has been met.

Since Walters does not apply to the instant case, we must determine whether the trial court correctly found that the support provisions of the Deed of Separation were in fact ordered by the court. In pertinent part, the consent judgment entered 21 May 1974 states:

[I]t is ORDERED, ADJUDGED and DECREED:

A. That the Deed of Separation duly executed by plaintiff and defendant on April 30, 1974, is hereby incorporated by reference in its entirety in this Order, and, by consent of the parties, is a part of the judgment of this Court; and that its terms shall control and determine alimony, child support, attorneys' fees paid by defendant for the benefit of plaintiff and all other matters set out therein; but that said Deed of Separation is not merged in this Order to the end that a final termination of this cause, if such should occur, will leave the parties free to enforce said Deed of Separation by independent action.

(Emphasis added.)

In his 9 November 1983 order,...