Powers v. Powers, 9014DC749

• Decision Date: 20 August 1991
• Docket Number: No. 9014DC749,9014DC749
• Citation: 407 S.E.2d 269,103 N.C.App. 697
• Parties: Judith P. POWERS v. Wayne P. POWERS.
• Court: North Carolina Court of Appeals

Page 269

407 S.E.2d 269

103 N.C.App. 697

Judith P. POWERS v. Wayne P. POWERS.

No. 9014DC749.

Court of Appeals of North Carolina.

Aug. 20, 1991.

James B. Craven III, Durham, for plaintiff-appellee.

Coleman, Bernholz, Bernholz, Gledhill & Hargrave, by Kim K. Steffan, Hillsborough, for defendant-appellant.

WYNN, Judge.

I

Plaintiff and defendant were married on 24 August 1968 in Ocean City, New Jersey. Thereafter, they lived together as husband and wife in Durham County, North Carolina until May 1980, at which time they separated and entered into a separation agreement. The parties subsequently obtained a divorce in the State of Texas in May 1981; however, the separation agreement executed in North Carolina apparently was not mentioned in the Texas divorce decree. Following the parties' divorce, the defendant remarried and moved to the State of Idaho. At the time this action was commenced, plaintiff was a citizen and resident of the State of New Hampshire and defendant was a citizen and resident of the State of Idaho.

In August 1981, plaintiff filed a complaint against the defendant seeking the specific performance of certain provisions contained in the May 1980 separation agreement. In particular, it was alleged that the defendant had failed to comply with provisions for the support of the parties' daughter, Jennifer Lesley Powers, then ten years old, and for the payment of certain medical expenses.

In August 1982, the parties entered into a consent judgment which, inter alia, modified the parties' May 1980 separation agreement and incorporated it. As modified, the separation agreement provided that the defendant would "provide and pay for four years of college education for Jennifer at a college to be selected by the Husband and Jennifer, provided however, that the Husband shall not unreasonably withhold his consent to Jennifer's selection of a college." (After it became apparent that Jennifer and her father could not agree on which college Jennifer should attend, Jennifer, following her graduation from high school in June 1989, elected to attend the University of North Carolina at Wilmington (UNC-Wilmington) in the fall of 1989.) The consent judgment also provided that the defendant's financial obligation to provide a college education for Jennifer would be at least equal to the cash surrender value of a "whole life" insurance policy which the defendant was obligated to carry on his life under the terms of the original separation agreement.

After entry of the consent judgment, the defendant continued to disregard certain terms of the modified separation agreement. Plaintiff then filed a motion on 27 December 1989 seeking, inter alia, an order requiring the defendant to show cause why he should not be held in contempt of court for failing to comply with the terms of the consent judgment. Most pertinent to this appeal, the plaintiff alleged that the defendant had failed to "provide and pay for four years of college education for Jennifer." Pursuant to plaintiff's motion, a show cause order was issued and a hearing was held on 26 February 1990.

Following the hearing, the court concluded that the defendant was in contempt of the "college expenses" provision of the consent judgment because he had unreasonably withheld consent to Jennifer's attending UNC-Wilmington. (The defendant claimed that his withholding of consent to Jennifer's attending UNC-Wilmington was reasonable because he could not afford to send her to school there.) In order to purge himself of the contempt, the defendant was ordered to pay the plaintiff the sum of $10,501.68 (the amount of tuition in arrears, plus reimbursement for $841.00 in medical expenses); the full cost of Jennifer's college expenses in subsequent years; and the plaintiff's attorney fees. In addition, although the plaintiff did not specifically request it as relief, the court's Order and Judgment concluded that the plaintiff was entitled to the defendant's specific performance of the obligations set forth in the parties' modified separation agreement. From the Order and Judgment finding the defendant in contempt and ordering specific performance, the defendant appeals.

II

Defendant makes several assignments of error, many of which are duplicative in nature. In essence, defendant contends that several of the trial court's findings of fact are unsupported by the evidence and that the totality of the findings do not support the judgment holding him in contempt of the consent judgment and ordering him to pay for his daughter's education at UNC-Wilmington. Defendant also contends that the trial court erred by awarding the plaintiff attorney's fees.

We note initially that the consent judgment in this case was entered in 1982, and is therefore not controlled by our Supreme Court's decision in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), which abolished the tradition of treating "court-approved" and "court-adopted" separation agreements differently. The ruling in that case was expressly limited to the consent judgment in that case and to consent judgments entered after 11 January 1983, the date of that opinion. Id. at 386, 298 S.E.2d at 342.

For those consent judgments entered prior to Walters, the courts of this State recognized a distinction between two types of consent judgments: (1) consent judgments in which the court merely approved of agreements between parties; and (2) consent judgments in which the court fully adopted agreements between parties as its own determination of the parties' respective rights and obligations. Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240, 242 (1964).

A consent judgment of the first type was not considered to be an order of the court; rather, it was considered to be "nothing more than a contract between the parties made with the approval of the court." Id. As such, a party who wished to enforce the rights or obligations under such a consent judgment was required to do so through traditional contract channels. Walters, 307 N.C. at 385, 298 S.E.2d at 341.

A consent judgment of the second type, on the other hand, was considered to be an order of the court. Consequently, the rights and obligations arising under this type of consent judgment were enforceable through the court's contempt powers. Id.

The consent judgment in the instant case expressly "incorporated" the parties' 1980 separation agreement, as modified, and "made it a part [t]hereof". "When the parties' agreement ... is incorporated in the judgment, their contract is superceded by the court's decree." Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967). "The obligations imposed are those of the judgment, which is enforceable as such. In such a case [a party] has the option of enforcing the judgment by a rule of contempt or by execution, or both." Id. (citations omitted). It is clear that the consent judgment in the instant case is indeed of the second type discussed above and is therefore enforceable through the court's contempt powers. See also Bunn, 262 N.C. at 69, 136 S.E.2d at 243; Rowe v. Rowe, 305 N.C. 177, 183, 287 S.E.2d 840, 844 (1982).

Since the consent judgment in this case sub judice is to be considered and enforced as an order of the court, we first find that the trial court improvidently granted the plaintiff specific performance as a remedy for the defendant's failure to comply with the consent judgment. Specific performance is a remedy which applies to the enforcement of a contract, not to the enforcement of a court order. Accordingly, that portion of the trial court's Order and Judgment ordering specific performance is vacated.

Turning to the defendant's assignments of error, we note that our review of contempt proceedings is confined to a determination of whether there is competent evidence to support the findings of fact and whether the findings support the judgment. Koufman v. Koufman, 97 N.C.App. 227, 388 S.E.2d 207 (1990); McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985). In this case, the defendant contends both that certain findings of fact are unsupported by the evidence, and that the totality of the findings do not support the judgment finding him in contempt.

The trial court's Order and Judgment contains several findings of fact made en route to concluding that the defendant had unreasonably withheld his consent to Jennifer's attending UNC-Wilmington and that the defendant should, therefore, be held in contempt. For the sake of simplicity, we have renumbered and paraphrased the findings of fact which the defendant claims are unsupported by the evidence; they include the following:

(1) that the defendant had been unwilling, up to the date of the hearing, to pay at least the cash surrender value of his life insurance policy;

(2) that the defendant had contributed up to $4000 per year toward his stepson's college education at Fresno State University and at the University of Idaho;

(3) that the defendant paid some portion of the expenses for his current wife and stepson to go to Switzerland on a band trip;

(4) that Jennifer had no interest in attending college in Idaho or the State of Washington;

(5) that the defendant gave his "qualified endorsement" to Jennifer's attending the University of North Carolina at Chapel Hill (UNC-Chapel Hill), where he had gone to college; and

(6) that the defendant was willing to agree only to Jennifer's attendance at the University of Idaho.

After reviewing the transcript and the record, we conclude that each of these findings of fact is supported by the evidence.

With respect to finding number 1, although the defendant testified that he "offered" the cash surrender value of his life insurance policy for Jennifer's college education, we can find no evidence, and the defendant points to none, that the defendant has in fact "offered" that sum. There is no evidence that the cash surrender value of the life insurance policy was ever tendered to either Jennifer or her mother...