White v. White

• Decision Date: 16 March 1979
• Docket Number: No. 67,67
• Citation: 252 S.E.2d 698,296 N.C. 661
• Court: North Carolina Supreme Court
• Parties: Sallie Walston WHITE v. James Edgar WHITE.

Page 698

252 S.E.2d 698

296 N.C. 661

Sallie Walston WHITE v. James Edgar WHITE.

No. 67.

Supreme Court of North Carolina.

March 16. 1979.

Moore, Diedrick, Whitaker & Carlisle by J. Edgar Moore, Rocky Mount, for plaintiff-appellee.

Biggs, Meadows, Batts, Etheridge & Winberry by Charles B. Winberry, Rocky Mount, and Farris, Thomas & Farris by Allen G. Thomas, Wilson, for defendant-appellant.

EXUM, Justice.

Plaintiff wife filed a motion in the cause to increase certain periodic payments made to her by defendant husband under an earlier consent judgment. On motion of defendant, the district court dismissed plaintiff's motion without a hearing on the grounds that (1) the consent judgment was not modifiable, and (2) even if it was, plaintiff had failed to make a sufficient allegation of changed circumstances to support modification. The Court of Appeals, with one judge dissenting, reversed the order of the district court, concluding (1) there is nothing on the face of the earlier consent judgment to preclude modification, (2) plaintiff's motion alleges sufficient grounds to support modification, and (3) plaintiff is entitled to a hearing on her motion. We agree with the majority of the Court of Appeals and affirm.

On 22 June 1966 plaintiff filed a claim against defendant for alimony without divorce. Defendant answered, denying the principal allegations of plaintiff's complaint, and counterclaimed for divorce on several grounds. Both plaintiff's claim and defendant's counterclaim were resolved by two judgments entered on 17 November and 24 November 1969, respectively, by Judge Carlton. The 17 November judgment read as follows:

"This cause coming on to be heard and being heard before the Honorable J. Phil Carlton, Chief Judge, Seventh Judicial District, District Court Division; and it appearing to the Court that this is an action for alimony and divorce and that a duly verified complaint and answer have been filed; and that all things and matters in controversy arising out of the actions and pleadings have been agreed upon and settled; and the Court finding as a fact that said agreement is just and agreeable with respect to both parties and adopting the agreement of the parties as its own determination of their respective rights and obligations;

IT IS NOW, THEREFORE, ORDERED, ADJUDGED AND DECREED:

1. That James Edgar White shall pay to Sallie Walston White as permanent alimony the following sums:

(a) $100.00 per week beginning November 17, 1969 and $100.00 on each and every Monday thereafter as like payment until the remarriage or death of Sallie Walston White, whichever occurs first;

(b) $1,000.00 in (1) lump sum payment;

2. That said James Edgar White shall convey to Sallie Walston White by warranty deed his one-half interest in their home located at 306 South Deans Street, Wilson, North Carolina, free and clear of all liens and encumbrances; and that she shall also receive all the right, title and interest in and to all the furnishings and household goods located in said home;

3. That the defendant, James Edgar White, shall pay the costs of this action as taxed by the Clerk.

This the 17 day of November, 1969.

s/ J. PHIL CARLTON

Judge Presiding

CONSENTED TO:

s/ SALLIE WALSTON WHITE, Plaintiff

s/ JAMES EDGAR WHITE, Defendant

MOORE AND DIEDRICK

Attorneys for Plaintiff

s/ By: T. J. Diedrick

FARRIS AND THOMAS

Attorneys for Defendant

s/ By: Allen G. Thomas"

The 24 November 1969 judgment granted defendant an absolute divorce based on one year's separation.

By motion filed 13 October 1976 plaintiff sought to have the court "increase the amount of support that the Defendant has to pay to the Plaintiff as permanent alimony." Defendant filed a motion to dismiss for failure to state a claim under Rule 12(b)(6), which was granted by the trial court. In its order of dismissal, the trial court made a number of "findings of fact" and "conclusions of law." Finding of Fact # 16 was that: The support provisions and the provision for the division of property are not separable. " Conclusion of Law # 3 was that: "The support provision and the provision for the distribution of real and personal property are not separable and may not be changed."

The principal issue is whether the court has the power to modify the amount of the weekly payments provided for in the consent judgment. As a general rule a consent judgment cannot be modified or set aside except by agreement of the parties. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956). The basis for this rule is that the consent judgment is merely a contract between the parties which has been approved by the court. Davis v. Davis, 213 N.C. 537, 196 S.E. 819 (1938). A consent judgment can be set aside unilaterally, though, in case of fraud or mutual mistake, Holden v. Holden, supra, neither of which was alleged here.

Such limitations on a court's power to modify are present, however, only in the case of a purely contractual consent judgment, one in which "the court merely approves or sanctions the payments which the husband has agreed to make for the wife's support and sets them out in a judgment against him." Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240, 242 (1964). A different situation exists when the trial court "adopts the agreement of the parties as its own determination of their respective rights and obligations and orders the husband to pay the specified amounts as alimony." Id. In that case the consent judgment is both modifiable and enforceable by the court's contempt power. The rationale for this distinction is that such a consent judgment is not merely a contract between the parties but rather a decree of the court. Id. at 70, 136 S.E.2d at 243.

This distinction has been adopted in a number of our cases. See Holsomback v. Holsomback, 273 N.C. 728, 161 S.E.2d 99 (1968); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966); Bunn v. Bunn, supra, 262 N.C. 67, 136 S.E.2d 240; Seaborn v. Seaborn, 32 N.C.App. 556, 233 S.E.2d 67 (1977). It is also now embodied in G.S. 50-16.9(a):

"An Order of a court of this State for alimony or alimony pendente lite, Whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. This section shall not apply to orders entered by consent before October 1, 1967." (Emphasis added.)

The order in question was entered on 17 November 1969; therefore, if it meets the requirements of G.S. 50-16.9(a) it is modifiable.

For a court to have power to modify a consent judgment, the first requirement of the statute, as with our case law, is that the judgment consented to be an order of a court. The judgment here meets this requirement. Judge Carlton in his order of 17 November 1969 adopted the agreement of the parties as his own determination of their respective rights and obligations and "ordered, adjudged and decreed," among other things, that defendant pay $100 per week to plaintiff until her death or remarriage. The consent judgment is clearly an order of the court. See Sayland v. Sayland, supra, 267 N.C. 378, 148 S.E.2d 218.

The second essential requirement 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 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 provision 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.)

Defendant contends that as a matter of law the provisions for weekly support payments to plaintiff and for the transfer to her of certain real and personal property are not separable and that the consent judgment is not subject to modification. We do not agree.

Defendant argues at the outset that we are bound on this issue by the trial court's finding of fact that the support provision and the provision for division of property are not separable because plaintiff has not excepted to this finding. There are two replies to this argument. First, this "finding" is, as the trial court later called it, really a conclusion of law, which is subject to review under plaintiff's exception to the signing and entry of the order. See Greensboro v. Black, 232 N.C. 154, 59 S.E.2d 621 (1950).

Second, a trial court cannot make "findings of fact" conclusive on appeal on a motion to dismiss for failure to state a claim under Rule 12(b)(6). The only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. Sutton v. Duke,277 N.C. 94, 176 S.E.2d 161 (1970). In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). "The function of a motion to dismiss is to test the law of a claim, not the facts which support it." Niece v. Sears, Roebuck & Co., 293 F.Supp. 792, 794 (N.D.Okla.1968) (applying Federal Rule 12(b)(6)). Resolution of evidentiary conflicts is thus not within the scope of the Rule. We are not bound by the trial court's "finding" that the support and property division provisions are not separable.

The question, then, is whether the provision...