Minor v. Minor

• Decision Date: 21 August 1984
• Docket Number: No. 8315SC478,8315SC478
• Citation: 70 N.C.App. 76,318 S.E.2d 865
• Parties: Paulette Farrington MINOR v. Randolph MINOR.
• Court: North Carolina Court of Appeals

Page 865

318 S.E.2d 865

70 N.C.App. 76

Paulette Farrington MINOR v. Randolph MINOR.

No. 8315SC478.

Court of Appeals of North Carolina.

Aug. 21, 1984.

Lee W. Settle, Mebane, for defendant-appellant.

Ridge & Richardson by Daniel S. Johnson, Graham, for plaintiff-appellee.

JOHNSON, Judge.

The threshold question presented for review is whether judgment on the pleadings is appropriate in this action. G.S. 1A-1, Rule 12(c) provides that a motion for judgment on the pleadings should not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law. Trust Co. v. Elzey, 26 N.C.App. 29, 214 S.E.2d 800, cert. denied, 288 N.C. 252, 217 S.E.2d 662 (1975). The trial judge is to consider only the pleadings and any attached exhibits, which become part of the pleadings. Wilson v. Development Co., 276 N.C. 198, 206, 171 S.E.2d 873, 879 (1970); Van Every v. Van Every, 265 N.C. 506, 512, 144 S.E.2d 603, 607 (1965); 10 Strong's N.C. Index 3d, Pleadings, § 38.4, p. 304-305. No evidence is to be heard, and the trial judge is not to consider statements of fact in the briefs of the parties or the testimony of allegations by the parties in different proceedings. Wilson v. Development Co., supra, 276 N.C. at 206, 171 S.E.2d at 878; Acceptance Corp. v. Spencer, 268 N.C. 1, 13, 149 S.E.2d 570, 579 (1966); 10 Strong's N.C. Index 3d, Pleadings, § 38.4, p. 305.

The record in this case, however, contains affidavits and indicates that the trial judge, in addition to considering the pleadings and attached exhibits, also heard counsel for both parties and considered briefs submitted by both parties. Therefore, the motion must be considered as though it was made under Rule 56. See G.S. 1A-1, Rule 12(c) (motion for judgment on the pleadings will be treated as motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court).

G.S. 1A-1, Rule 56(c) provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Summary judgment, like judgment on the pleadings, is appropriately granted only where no disputed issues of fact have been presented and the undisputed facts show that any party is entitled to judgment as a matter of law. Bland v. Bland, 21 N.C.App. 192, 203 S.E.2d 639 (1974) (summary judgment); High v. Parks, 42 N.C.App. 707, 257 S.E.2d 661, disc. rev. denied, 298 N.C. 806, 262 S.E.2d 1 (1979) (judgment on the pleadings).

In this case, the rights and obligations of the parties are established by the consent judgment and the only dispute between the parties relates to the proper interpretation of its provisions. Such questions are appropriately addressed on motion for summary judgment. See Bland v. Bland, supra.

In essence, a consent judgment is a contract between parties entered upon the record with the approval and sanction of the court. Id. 21 N.C.App. at 195, 203 S.E.2d at 641. A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties; it must be interpreted in light of the controversy and the purposes intended to be accomplished by it. Id. Where the language of the contract is plain and unambiguous, the construction of the agreement is a matter of law; the court may not ignore or delete any of its provisions, nor insert words into it, but must construe the contract as written, in light of undisputed evidence as to custom, usage and meaning of its terms. Martin v. Martin, 26 N.C.App. 506, 508, 216 S.E.2d 456, 457-458 (1975); 3 Strong's N.C. Index 3d, Contracts, § 12.1, p. 392.

This Court cannot insert the words "child support" into the plain and unambiguous language of the consent judgment. Defendant contends that the consent judgment awarded plaintiff the marital home as child support. To support his argument, defendant relies upon affidavits by himself and lawyers for both parties during the proceeding which terminated with the consent judgment. The affidavits attest to the affiants' beliefs that the award of the home was intended to be child support. However, these affidavits may not properly be considered in support of defendant's argument because the language of the consent judgment is plain and unambiguous.

In Corbin v. Langdon, 23 N.C.App. 21, 208 S.E.2d 251 (1974), the plaintiff presented affidavits to show the practical interpretation given to an earlier contract between the parties involving the sale of a dentistry practice. The court concluded that any parol understandings regarding the interest of the parties merged into the writings. Id. at 26, 208 S.E.2d at 254. Finding that the parties had ample opportunity to clearly express other interests but had failed to do so, the court refused to consider the affidavits as evidence manifesting an intent other than that expressed in their written agreement. Id. We find this principle of contract construction equally applicable in the case sub judice. We have examined the language of the parties' consent judgment itself to ascertain the intent of the parties and find no mention of child support in regard to the marital home. Significantly, another award is specifically entitled "child support." Under these circumstances, this Court cannot, under the guise of construction, insert the words "child support" in reference to the marital home when the parties have elected to omit them.

Moreover, although the consent judgment also failed to denominate possession of the marital home as "alimony," the circumstances surrounding the agreement reinforce that interpretation. G.S. 50-16.7(a) reads in relevant part: "In every case in which alimony or alimony pendente lite is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance." See also G.S. 50-13.4(e). Had the trial court specifically identified the possession of the marital home to be alimony, as it is directed to by the statute, this action might have been forestalled. However, the fact that the judgment granted child support in an express provision, separate from the award of possession of the marital home, indicates that the...