Mitchell v. Mitchell, 547

• Decision Date: 03 May 1967
• Docket Number: No. 547,547
• Citation: 154 S.E.2d 71,270 N.C. 253
• Court: North Carolina Supreme Court
• Parties: George Cree MITCHELL v. Geraldine Edwards MITCHELL.

Page 71

154 S.E.2d 71

270 N.C. 253

George Cree MITCHELL v. Geraldine Edwards MITCHELL.

No. 547.

Supreme Court of North Carolina.

May 3, 1967.

Boyce, Lake & Burns, Raleigh, for plaintiff appellee.

Harrell & Mattox, Greenville, for defendant appellant.

SHARP, Justice.

A contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529. When, however, a court having jurisdiction of the parties and the cause of action, adjudges and orders the husband to make specified payments to his wife for her support, his wilful failure to comply with the court's judgment will subject him to attachment for contempt notwithstanding the judgment was based upon the parties' agreement and entered by consent. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. See Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370. This is true, 'not because the parties have agreed to it, but because the judgment requires the payment.' Sessions v. Sessions, 178 Minn. 75, 226 N.W. 211, 701. When the parties' agreement with reference to the wife's support is incorporated in the judgment, their contract is superseded by the court's decree. The obligations imposed are those of the judgment, which is enforceable as such. Adkins v. Staker, 130 Ohio St. 198, 198 N.E. 575; accord, Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700. In such a case the wife has the option of enforcing the judgment by a rule of contempt or by execution, or both.

Plaintiff argues, however, that the court's judgment that he pay defendant $150.00 a month for ten years, or a total of $18,000.00 if she fails to remarry, is not an award of alimony but merely a contract between the parties to which the court gave its approval. The answer to this argument is that the judge went further than merely putting his stamp of approval on the parties' contract. He could have manifested approval just by making the certificate required by G.S. § 52--6 and G.S. § 47--39. Instead, he entered a judgment in which he Ordered plaintiff to make the payments which he had agreed to make and which defendant had agreed to accept. When the court incorporated the agreement in its mandate, its approval was implicit, but, having made the order, its mandate cannot be downgraded to mere approval.

Plaintiff urges that since the monthly payments which he agreed to make to his wife were not denominated Alimony in the judgment, they cannot be construed as such. The provision that defendant's remarriage will relieve plaintiff of the obligation to make further payments, Fox v. Fox, 253 P.2d 1030 (Cal.Dist.Ct.App., 2d Dist., Div. 1), the circumstances surrounding the entry of the judgment, and the motives which prompted each party to consent to it, render this contention feckless. There is no suggestion in the transcript that there had been a property settlement between the parties and that the monthly payments were to reimburse defendant for property she had transferred or released to plaintiff. In order to secure his divorce in June 1966, plaintiff had to overcome the defense which defendant had alleged to his action and the cross action, both of which were based on his alleged abandonment of her. To do this, he had to obtain a jury verdict in his favor or a consent judgment from the court. He chose the latter as the safer course.

Although Judge Brock had sustained plaintiff's demurrer to the cross action (the correctness of that ruling is not before us), defendant's first statement of it reveals no reason to suppose that she could not allege a cause of action under G.S. § 50--16 which would withstand demurrer. The court had allowed her thirty days in which to do so. Defendant's motion for alimony Pendente lite and counsel fees was still before the court, which had general jurisdiction of the parties and their marital rights. Judge Brock could have vetoed the proposed decree. Instead, he adopted it and made its his own. The order that plaintiff pay defendant the sum of $150.00 on 5 June 1966 and on the 5th day of each month thereafter, through 5 May 1976, did not denominate the payments Alimony or total the installments, yet the award was indubitably alimony in gross or 'lump sum alimony,' which is fundamentally the award of a definite sum of money for the wife's support and maintenance. 27A C.J.S. Divorce § 235 (1959). 'Ordinarily, in the absence of express statutory authority or the consent of the parties, a court cannot award alimony in gross in lieu of a periodical allowance.' 24 Am.Jur.2d, Divorce and Separation §...