Sainz v. Sainz

• Decision Date: 20 June 1978
• Docket Number: No. 7712SC446,7712SC446
• Citation: 36 N.C.App. 744,245 S.E.2d 372
• Court: North Carolina Court of Appeals
• Parties: Flora L. SAINZ v. Anthony SAINZ.

Page 372

245 S.E.2d 372

36 N.C.App. 744

Flora L. SAINZ v. Anthony SAINZ.

No. 7712SC446.

Court of Appeals of North Carolina.

June 20, 1978.

Smith, Geimer & Glusman, by Kenneth Glusman, Fayetteville, for plaintiff.

Butler, High & Baer, by Keith L. Jarvis, Fayetteville, for defendant.

BROCK, Chief Judge.

As a preliminary matter, we note that the trial court purported to make findings of fact and conclusions of law in its order. The words of Judge Morris in a recent opinion are pertinent:

"At the outset we feel compelled again to point out that it is not a part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law. . . . Granted, in rare situations it can be helpful for the trial court to set out the undisputed facts which form the basis for his judgment. When that appears helpful or necessary, the court should let the judgment show that the facts set out therein are the undisputed facts. The judgment now before us does not so indicate. It does appear, however, that the material facts set out are not in dispute." Capps v. City of Raleigh, 35 N.C.App. 290, 292, 241 S.E.2d 527, 528-529 (1978).

Here, also, it appears that the material facts set out by the trial court are undisputed, and we thus proceed to dispose of the question of law raised by this appeal, namely, whether the trial court erred in refusing to recognize and adopt the New York decree of specific performance.

Plaintiff's express purpose in seeking the remedy of specific performance was to enable her to enforce the provisions of the separation agreement by civil contempt proceedings. She concedes that the relief sought would not be available to her in an action brought originally in the courts of this State. The enforcement of support payments provided in an extrajudicial separation agreement is accomplished as in the case of any other civil contract, i. e. through an action for breach of the contract seeking a judgment for sums due. Such an action, sounding in contract, is not enforceable by execution in personam in the form of imprisonment for civil contempt for non-compliance, by reason of the constitutional prohibition against imprisonment for debt. N.C.Const., Art. I, § 28; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946); Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). Based upon the above reasoning, this Court recently held that injunctive relief is not available to a plaintiff seeking to enforce support provisions of a separation agreement. Riddle v. Riddle, 32 N.C.App. 83, 230 S.E.2d 809 (1977). It follows, therefore, that the remedy of specific performance of a separation agreement contemplating enforcement by civil contempt proceedings is not available in this State.

This conclusion is not altered by the recent case of Levitch v. Levitch, N.C., 241 S.E.2d 506 (1978). In Levitch a judgment was issued granting defendant therein an absolute divorce and the provisions of a separation agreement between the parties was adopted by order of the district court directing payment of the amounts specified in the agreement. In such a case, the separation agreement is superseded by a decree of the court which is enforceable by contempt proceedings. The distinction between enforcement of a mere extrajudicial contractual separation agreement and a decree of the court incorporating the provisions of a separation agreement into a judgment of divorce remains viable in this State.

Plaintiff contends, nevertheless, that the New York specific performance decree is entitled to recognition and enforcement in North Carolina by virtue of the full faith and credit clause of the U.S. Constitution. We disagree, and hold to the contrary.

Under the full faith and credit clause a valid judgment for the payment of money must, as a general rule, be recognized and enforced in a sister state. Restatement 2d, Conflict of Laws §§ 93 and 100 (1971). Likewise, a judgment in the nature of an equitable decree that orders the doing of an act is entitled to recognition to the same degree as another judgment. Id. § 102, Comment b. However, there is a distinction between recognition of a foreign judgment, on the one hand, and its enforcement, on the other hand, as noted in an introductory note preceding the above cited § 93:

"A foreign judgment is recognized, as the term is used in the Restatement of this Subject, when it is given the same effect that it...