McIntosh v. McIntosh

Decision Date07 May 1985
Docket NumberNo. 8415DC546,8415DC546
Citation328 S.E.2d 600,74 N.C.App. 554
PartiesJoseph C. McINTOSH v. Barbara D. McINTOSH.
CourtNorth Carolina Court of Appeals

Vernon, Vernon, Wooten, Brown & Andrews, P.A. by T. Randall Sandifer and Wiley P. Wooten, Burlington, for plaintiff-appellant.

Bryant, Drew, Crill & Patterson, P.A. by Victor S. Bryant, Jr., Durham, for defendant-appellee.


The threshold issue presented by this appeal is whether the trial court erred in giving legal effect to the parties' oral stipulations relating to the distribution of their marital property. The parties stipulated as follows: (1) that all property owned by them at the time they separated was marital property; (2) that the marital property was to be divided equally; (3) that the marital property was to be valued as of the date of their divorce; and (4) that they would each bear their own expense and costs of the proceedings. The parties were willing to leave the actual division of their property to the court, if necessary.

The parties' stipulations were informally dictated to the court reporter at a hearing to determine the amount of alimony to be awarded, if any. No inquiry was made by the court into the parties' understanding of the legal effect of their agreement or the terms of their agreement. The stipulations were not reduced to writing nor were they acknowledged by the parties as accurately reflecting their agreement. We believe that the failure of the trial court to make such inquiries and/or the parties' failure to reduce the stipulations to writing is inadequate to protect or safeguard the rights of the parties. We find support for this belief in G.S. 50-20(d).

G.S. 50-20(d) states:

Before, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.

We believe this section was enacted to insure against fraud and overreaching on the part of one of the spouses. It has often been stated that, "[t]he relationship between husband and wife is the most confidential of all relationships, and transactions between them, to be valid, must be fair and reasonable.... To be valid, 'a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties.' " Johnson v. Johnson, 67 N.C.App. 250, 255, 313 S.E.2d 162, 165 (1984) (quoting Eubanks v. Eubanks, 273 N.C. 189, 195-96, 159 S.E.2d 562, 567 (1968)). Courts have thrown a cloak of protection about separation agreements and made it their business, when confronted, to see that they are arrived at fairly and equitably. Id.

We believe the same...

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32 cases
  • Robinson v. Robinson
    • United States
    • North Carolina Court of Appeals
    • March 15, 2011
    ...of marital property is not binding. See Holder v. Holder, 87 N.C.App. 578, 582, 361 S.E.2d 891, 893 (1987); McIntosh v. McIntosh, 74 N.C.App. 554, 555, 328 S.E.2d 600, 601 (1985) (providing that a contemporaneous inquiry of parties by trial court is required before accepting oral stipulatio......
  • Quesinberry v. Quesinberry
    • United States
    • North Carolina Court of Appeals
    • April 5, 2011
    ...the distribution of their marital property should be reduced to writing, duly executed and acknowledged.” McIntosh v. McIntosh, 74 N.C.App. 554, 556, 328 S.E.2d 600, 602 (1985). Additionally, oral stipulations that are not reduced to writing will be similarly sufficient to convey the partie......
  • Hill v. Hill
    • United States
    • North Carolina Court of Appeals
    • July 5, 1989
    ...settlement agreement must also be entered into voluntarily, without fraud, duress, or coercion. See generally McIntosh v. McIntosh, 74 N.C.App. 554, 556, 328 S.E.2d 600, 602 (1985). See also Small v. Small, 93 N.C.App. 614, 379 S.E.2d 273 (1989) (comparing property settlement agreements wit......
  • Fox v. Fox
    • United States
    • North Carolina Court of Appeals
    • April 5, 1994
    ...actions, our courts favor written stipulations which are duly executed and acknowledged by the parties. See McIntosh v. McIntosh, 74 N.C.App. 554, 556, 328 S.E.2d 600, 602 (1985). Oral stipulations, however, are binding if the record affirmatively demonstrates: (1) the trial court read the ......
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