Marks v. Marks

• Decision Date: 02 July 1985
• Docket Number: No. 8418DC934,8418DC934
• Citation: 331 S.E.2d 283,75 N.C. App. 522
• Court: North Carolina Court of Appeals
• Parties: Ellen Spear MARKS v. Edgar Seymour MARKS.

Page 283

331 S.E.2d 283

75 N.C.App. 522

Ellen Spear MARKS v.Edgar Seymour MARKS.

No. 8418DC934.

Court of Appeals of North Carolina.

July 2, 1985.

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

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

EAGLES, Judge.

As the trial court did, we first address the issue of whether the 21 May 1974 consent judgment was modifiable by motion in the cause.For reasons set out below, we hold that it was not and reverse the judgment of the trial court.

As has been noted in many similar cases, there are essentially two types of consent judgments.One is a contract that is approved by the court.It is enforceable or modifiable as an ordinary contract--by an independent action brought by one of the parties.See, e.g., Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735(1979).The other is an actual adjudication of the court where the court adopts the agreement of the parties as its judgment and specifically orders compliance with the provisions of the agreement.It is enforceable or modifiable by a motion in the cause.See, e.g., Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882(1961).See generally, Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240(1964);Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506(1978).

G.S. 50-16.9, which applies to all orders entered on or after 1 October 1967, provides that any order for the payment of alimony, whether entered by consent or not, is modifiable by a motion in the cause.In Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840(1982)andWhite v. White, 296 N.C. 661, 252 S.E.2d 698(1979), the Supreme Court noted that this statute declared a clear public policy that consent orders to pay alimony are modifiable and that even a purported waiver of the statute would be without force and effect.Nevertheless, those cases held that consent orders containing provisions for the payment of alimony were not enforceable or modifiable by a motion in the cause where it appeared that the periodic support payments to the spouse, even though characterized or denominated by the parties as alimony, were actually reciprocal provisions of a property settlement and were integrated into the agreement in such a way that any modification of the support provision would destroy the agreement.SeeBunn v. Bunn, supra.

Recently, 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 Supreme Court held that any distinction between the types of consent judgments would no longer be recognized for purposes of enforcing the alimony provisions contained therein.

[W]e now establish a rule that whenever the parties bring their separation agreements before the court for the court's approval, it will no longer be treated as a contract between the parties.All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments.These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.

Id.307 N.C. at 386, 298 S.E.2d at 342.The Court specifically held that its previous opinions in Bunn and Levitch were no longer controlling to the extent that they conflicted with the new rule.By its own terms, the rule of Walters was prospective only.Doub v. Doub, 68 N.C.App. 718, 315 S.E.2d 732(1984), modified and affirmed, 313 N.C. 169, 326 S.E.2d 259(1985).

With these principles in mind, we turn to the Deed of Separation executed by the parties and incorporated by reference into the consent judgment of 21 May 1974.We find that the alimony provisions are clearly within the exception set out in White and Rowe and relied on in Doub in that they are clearly part of an integrated property settlement.

It is clear that neither party intended any provision of the Deed of Separation to be modifiable except as provided by its own terms or enforceable except by a separate action.The deed specifies that its incorporation by reference into the consent judgment does not constitute a merger of the two.The deed also recites the agreement of the parties to be bound by it irrespective of any divorce decree.Further, the deed of separation in this case contains a provision entitled "COVENANTS NOT TO INTERFERE," which provides in part as follows: "It is the intention of the parties that each will not bother, molest, or interfere with the other in any way whatsoever from this day forward."In Cecil v. Cecil, 74 N.C.App. 455, 328 S.E.2d 899(1985), we held that a similar provision in the separation agreement involved in that case was evidence of the parties' intention that the agreement be a permanent property settlement.See alsoBarr v. Barr, 55 N.C.App. 217, 284 S.E.2d 762(1981).

Notwithstanding the intent of the parties to the deed of separation, the court that entered the consent judgment clearly intended that the consent judgment only be an approval of the deed of separation and not an adoption of it.In Levitch v. Levitch, supra, the consent judgment contained language respecting incorporation by reference of the deed of separation and survival of the deed beyond the court's order that is almost identical to the language in the consent judgment before us.There, the Supreme Court held that the "unequivocal language" of the consent judgment indicated the trial court's intent to adopt the deed of separation and to order compliance with its terms.Here, however, the court specifically provided that the incorporation by reference of the Deed of Separation into the consent judgment was not intended to be a merger of the two, only that the Deed of Separation was part of the judgment of the court.The court made findings of fact in the consent judgment that the terms of the Deed of Separation were in the best interest of both parties and specifically that the terms...