Wells v. Wells

• Decision Date: 02 March 1999
• Docket Number: No. COA98-230.,COA98-230.
• Citation: 512 S.E.2d 468,132 NC App. 401
• Court: North Carolina Court of Appeals
• Parties: Betty Jewel WELLS, Plaintiff, v. William Arnold WELLS, Defendant.

512 S.E.2d 468

132 NC App. 401

Betty Jewel WELLS, Plaintiff, v. William Arnold WELLS, Defendant.

No. COA98-230.

Court of Appeals of North Carolina.

March 2, 1999.

John K. Burns, Wilmington, for plaintiff-appellant.

Lineberry and White, L.L.P. by Chas. M. Lineberry, Jr., Wilmington, for defendant-appellee.

JOHN, Judge.

Plaintiff appeals the trial court's 21 November 1997 grant of summary judgment in favor of defendant. Plaintiff contends the trial court erred by ruling that "collateral estoppel precludes [her] from relitigating" issues previously ruled upon at a post separation support (PSS) hearing. We reverse the trial court.

Pertinent undisputed facts and relevant procedural history include the following: Plaintiff and defendant were married 14 September 1965 and separated 27 October 1990. In May 1992, the parties executed a separation agreement (the agreement), the terms of which included, inter alia, waiver of temporary and permanent alimony and the requirement that defendant pay plaintiff $500.00 per month for five years, retroactive to October 1990. These payments were made each month until October 1993.

On 15 October 1993, defendant moved into plaintiff's apartment, remaining there until on or about 7 March 1994, when he obtained his own residence. In April 1994 and subsequent months, defendant made the $500.00 payments required by the agreement.

On 4 October 1995, plaintiff filed a "Complaint for Alimony and Motion for Postseparation Support" pursuant to N.C.G.S. § 50-16.1A (1995). The section became effective as to civil actions filed on or after 1 October 1995, on which date N.C.G.S. § 50-16.1 (repealed by 1995 N.C. Sess. Laws ch. 319, § 1, effective October 1, 1995), the alimony pendente lite (APL) statute, was repealed.

In a separate action, defendant was granted an absolute divorce from plaintiff on 13 October 1995. Plaintiff filed a calendar request for the PSS motion on 8 November 1995, seeking to be heard 20 November 1995. Defendant subsequently filed an "Answer and Counterclaim" on 13 November 1995, asserting, inter alia, execution of the agreement as "a complete bar to the Plaintiff's claims under N.C.G.S. § 50-16.1A et seq.," see N.C.G.S. § 50-16.6(b)(1995) ("[a]limony, postseparation support, and counsel fees may be barred by an express provision of a valid separation agreement ... so long as the agreement is performed"), and asserting a counterclaim for specific performance of the agreement.

The parties agree that at the 20 November 1995 hearing the trial court heard live testimony, that defendant relied upon the agreement as a defense to an award of PSS, and that the issue was raised regarding whether the parties' period of joint residence constituted a reconciliation. See Stegall v. Stegall, 100 N.C.App. 398, 403-04, 397 S.E.2d 306, 309-10 (1990),

disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991), and In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976)(reconciliation of parties voids executory provisions of a separation agreement).

In an order filed 12 January 1996, the trial court included the following pertinent findings of fact:

20. The parties, notwithstanding their common residence from 15 October 1993 to 7 March 199[4] [sic], have not reconciled, and have continuously acted in accordance with the terms and conditions of the Separation Agreement.

21. ... Plaintiff accepted the housing and resided with the Defendant for financial reasons only.

22. The Separation Agreement that the parties entered into on or about 21 May 1992 has remained in full force and effect.

The court further concluded as a matter of law that:

3. The Defendant is entitled to specific performance of the Separation Agreement... on the grounds that the parties' common residence does not qualify as a reconciliation, and that the terms and conditions contained in the Separation Agreement constitutes a complete bar to Plaintiff's claims for post-separation support.

The trial court thereupon denied plaintiff's motion for PSS. In addition, it ordered that "[d]efendant's claims for specific performance of the Separation Agreement are hereby granted."

On 8 July 1996, defendant moved for summary judgment on plaintiff's alimony claim. Defendant argued there remained no issue of material fact in view of the trial court's determination at the earlier hearing that there had been no reconciliation and that the agreement containing plaintiff's waiver of alimony was enforceable.

At the summary judgment hearing on 21 November 1997, the trial court found as fact that

3. At a hearing in November 1995, on Plaintiff's claim for postseparation support, testimony was solicited, evidence was presented, counsel gave argument on the facts concerning whether the parties had reconciled. Consequently the facts were actually litigated by the parties.

....

5. The resolution of the issue of reconciliation was essential to the determination of specific performance.... As a result, these issues are now precluded from further litigation in Plaintiff's claim for permanent alimony.

The trial court then concluded as a matter of law that:

2. Collateral Estoppel precludes the Plaintiff from relitigating the issue of specific performance of the parties'[ ][sic] May 1992 Separation Agreement, and hence, Plaintiff's claim for permanent alimony.

Based on the foregoing, the trial court granted defendant's motion for summary judgment and denied plaintiff's claim for permanent alimony. Plaintiff appeals.

Preliminarily, we address defendant's suggestion that plaintiff's failure to enter notice of appeal upon entry of the trial court's 12 January 1996 order precludes our consideration thereof. In Rowe v. Rowe, ___ N.C.App. ___, 507 S.E.2d 317 (1998), this Court held the order of a trial court granting PSS was interlocutory and not subject to immediate appeal:

Postseparation support is only intended to be temporary and ceases when an award of alimony is either allowed or denied by the trial court.... Therefore, since a postseparation support order is a temporary measure, it is interlocutory ... and it is not appealable.

Id. at ___, 507 S.E.2d at 319; see also Stephenson v. Stephenson, 55 N.C.App. 250, 252, 285 S.E.2d 281, 282 (1981)

(alimony pendente lite awards interlocutory and not immediately appealable).

Although plaintiff did not attempt immediate appeal of the 12 January 1996 order, in light of the attack in her second assignment of error upon the trial court's grant of defendant's specific performance claim in said order, we note the recent decision of our Supreme Court in Floyd v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 510 S.E.2d 156 (1999).

Floyd addressed the issue of jurisdiction of the appellate court to review earlier trial court orders in a matter wherein

the notice of appeal referred solely to the trial court's final judgment entered after the jury's verdict and made no reference to other orders entered at trial which plaintiffs sought to appeal.

Id. at 50, 510 S.E.2d at 158. The Supreme Court examined the nature of the earlier order complained of, determined it to have been interlocutory and not subject to immediate appeal, and concluded, citing N.C.G.S. § 1-278 (1996)(upon "appeal from a judgment, the [appellate] court may review any intermediate order involving the merits and necessarily affecting the judgment"), that

a party seeking to appeal from a nonappealable interlocutory order must wait until final judgment is rendered and may then proceed as designated in [N.C.R.App. P.] 3(d).

Id. at 51, 510 S.E.2d at 158. Under Floyd, therefore, although we caution that the better practice without doubt would be to designate each order appealed from in an appellant's notice of appeal, where the intent to appeal an intermediate interlocutory order "is quite clear from the record," id. at 52, 510 S.E.2d at 159, such order may be reviewed upon appeal of a final judgment notwithstanding failure of said order to be "specifically mentioned in the notice of appeal," id.

By contrast with the trial court's 12 January 1996 grant of defendant's specific performance claim, plaintiff has neither referenced in her assignments of error nor argues in her appellate brief any assertion of error regarding denial of her PSS motion on that same date. That portion of the trial court's 12 January 1996 order thus is not before us. See N.C.R.App. P. 10(a)("scope of review on appeal is confined to a consideration of those assignments of error set out in the record").

However, we conclude that we may properly consider the trial court's 12 January 1996 allowance of defendant's specific performance counterclaim. This order was "final... as to one or more but fewer than all of the claims," N.C.G.S. § 1A-1, Rule 54(b)(1990), and therefore interlocutory and not subject to immediate appeal, see Fliehr v. Fliehr, 56 N.C.App. 465, 466, 289 S.E.2d 105, 106 (1982)

(order for child support "entered in conjunction with orders awarding alimony pendente lite" not appealable "until entry of a final order on the plaintiff's claim for permanent alimony"), save under circumstances not present sub judice, see First Atlantic v. Dunlea Realty, Co., ___ N.C.App. ___, ___, 507 S.E.2d 56, 60 (1998)(interlocutory order immediately appealable only if trial court properly certifies "there is no just reason to delay the appeal" or order "deprives the appellant of a substantial right which would be lost absent immediate review"). As a nonappealable interlocutory order indisputably "involving the merits and necessarily affecting the [final] judgment," G.S. § 1-278; Floyd, 350 N.C. at 51,

510 S.E.2d at 159, which is challenged within plaintiff's second assignment of error in the instant appeal, the trial court's 12 January 1996 grant of defendant's specific performance counterclaim thus is properly reviewable on appeal even though not referenced in plaintiff's formal notice of appeal, see id. at 51-52, 510 S.E.2d at 159.

We therefore examine the trial...