Walters v. Walters

• Citation: 298 S.E.2d 338,307 N.C. 381
• Decision Date: 11 January 1983
• Docket Number: No. 30PA82,30PA82
• Parties: Cecil Jeanette WALTERS (now Ziegler) v. Melvin Royce WALTERS.
• Court: United States State Supreme Court of North Carolina

Page 338

298 S.E.2d 338

307 N.C. 381

Cecil Jeanette WALTERS (now Ziegler) v. Melvin Royce WALTERS.

No. 30PA82.

Supreme Court of North Carolina.

Jan. 11, 1983.

James, McElroy & Diehl, P.A. by William K. Diehl, Jr., and Katherine S. Holliday, Charlotte, for defendant-appellant.

Thomas D. Windsor, Charlotte, and Larry Harrington, Monroe, for plaintiff-appellee.

COPELAND, Justice.

The primary issue presented in this case is whether the original consent judgment within a court order of 4 October 1978 which was later amended by a consent judgment within a court order of 20 August 1979, may be modified. This Court has confronted this question of modification of consent judgments several times in the last few years, most recently in Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982) and White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979). However, as evidenced by two different analyses employed at the district court and the Court of Appeals, apparently there is some confusion in this area of family law.

For years in numerous decisions this Court has recognized the existence of two types of consent judgments. In the first type of consent judgment, which is nothing more than a contract, "the court merely approves or sanctions the payments ... and sets them out in a judgment ..." Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240, 242, (1964). These court approved contracts, which are not orders of the court, require the parties to seek enforcement and modification through traditional contract channels. Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978). "A judgment or decree entered by consent is not the judgment or decree of the court, so much as the judgment or decree of the parties, entered upon its records with the sanction and permission of the court, and being the judgment of the parties it cannot be set aside or altered without their consent." Harrison v. Dill, 169 N.C. 542, 545, 86 S.E. 518, 519 (1915). Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350 (1926).

In the second type of consent judgment, "the Court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders ..." that the provisions of the separation agreement be observed. Bunn v. Bunn, 262 N.C. at 69, 136 S.E.2d at 242. Court ordered consent judgments, which result from the adoption of the separation agreement, are no longer enforced or modified solely under contract law principles. "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." Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967).

As an order of the court, the court adopted separation agreement is enforceable through the court's contempt powers. This is true for all the provisions of the agreement since it is the court's order and not the parties' agreement which is being enforced. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964); Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982). In addition to being enforceable by contempt, the provisions of a court ordered separation agreement within a consent judgment are modifiable within certain carefully delineated limitations. As the law now stands if the provision in question concerns alimony, the issue of modifiability is determined by G.S. 50-16.9. However, if the provisions in question concern some aspect of a property settlement, then it may be modified only so long as the court's order remains unsatisfied as to that specific provision. "An action in court is not ended by the rendition of a judgment, but in certain respects is still pending until the judgment is satisfied." Abernethy Land and Finance Co. v. First Security Trust Co., 213 N.C. 369, 371, 196 S.E. 340, 341 (1938); Walton v. Cagle, 269 N.C. 177, 152 S.E.2d 312 (1967). Therefore, property provisions which have not been satisfied may be modified.

We now see no significant reason for the continued recognition of two separate forms of consent judgments within the area of domestic relations law. This conclusion is a result of the realization that while in law those court sanctioned separation agreements in consent judgments create nothing more than a contract, in practice those non-court ordered consent judgments generate great confusion in the area of family law.

Instead of following this dual consent judgment approach in family law, we now establish a rule that whenever the parties bring their separation agreements before the court for the court's approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case. Insofar as this rule is in conflict with the previous decisions of this Court in Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964) and Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978), those cases will no longer control. This new rule applies only to this case and all such judgments entered after this decision.

This is not a harsh rule. The parties can avoid the burdens of a court judgment by not submitting their agreement to the court. By not coming to court, the parties preserve their agreement as a contract, to be enforced and modified under traditional contract principles.

Under our new rule every court approved separation agreement is considered to be part of a court ordered consent judgment.

Through this decision we intend to clarify an aspect of family law which has suffered through many years of confusion. However, except as herein stated, consenting parties may still elect any of the options available to them prior to this opinion. For example, the parties may keep the property settlement provision aspects of their separation agreement out of court and in contract, while presenting their provision for alimony to the court for approval. The result of such action would be that the alimony provision is enforceable and modifiable as a court order while the property settlement provisions would be enforceable and modifiable under traditional contract methods.

We therefore hold that the opinion of the Court of Appeals is reversed and this case remanded to that court for a remand to the District Court of Mecklenburg County for entry of the original judgment.

REVERSED.

CARLTON and MEYER, JJ., dissent from this opinion.

EXUM, Justice, dissenting.

I must dissent from the result reached by the majority. The provisions of the consent judgment that require defendant to pay a specified sum of money to plaintiff over a specified time "regardless of whether or not the parties are divorced or the plaintiff should remarry during said period of time" are so clearly an agreement by defendant to pay a sum certain of money and not to pay alimony "even though denominated as such," that as a matter of law it may not be modified under our decision in White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979). In order for provisions for payments in a consent judgment to be modifiable, the consent judgment must first be a true order of the court. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964). I have no quarrel with the majority's conclusion that this consent judgment did constitute a judgment of the court. Beyond this I cannot concur in the majority's opinion.

The second requisite for modifiability of an unexecuted provision for periodic payments

is that the order be one to pay alimony. Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of the statute [G.S. 50-16.9(a) ] and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other. As explained by Justice, now Chief Justice Sharp in Bunn v. Bunn, supra, 262 N.C. at 70, 136 S.E.2d at 243:

'[A]n agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case. (Citations omitted.) However, if the support provisions and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties.' (Emphasis added.)

White v. White, supra, 296 N.C. at 666-67, 252 S.E.2d at 701. It is this second requirement for modifiability, i.e., that the court ordered payments be alimony, that is not met as a matter of law in this case. The consent judgment is not ambiguous on this point. The district court, therefore, erred in conducting an evidentiary hearing on this question, and the Court of Appeals correctly reversed the district court's determination that the payments were modifiable.

The majority unnecessarily departs from well-considered and helpful principles firmly established in our case law which coalesced in Bunn v. Bunn, supra, 262 N.C. 67, 136 S.E.2d 240, a well-analyzed opinion by Justice, later Chief Justice, Sharp. On the one hand the opinion quotes and cites Bunn approvingly, but then indicates that some portions of Bunn and Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978), may be inconsistent with the decision and are overruled.

Apparently the majority's position is that whenever parties enter into a consent judgment ^* in a domestic relations case any unexecuted provisions of the judgment are always modifiable by the court notwithstanding that the parties, for reasons satisfactory to themselves, have agreed that these provisions shall...