Williams v. Williams

• Decision Date: 21 November 1995
• Docket Number: No. 9419DC320,9419DC320
• Citation: 120 N.C.App. 707,463 S.E.2d 815
• Parties: Barbara E. WILLIAMS, Plaintiff, v. Bennie S. WILLIAMS, Defendant.
• Court: North Carolina Court of Appeals

Page 815

463 S.E.2d 815

120 N.C.App. 707

Barbara E. WILLIAMS, Plaintiff, v. Bennie S. WILLIAMS, Defendant.

No. 9419DC320.

Court of Appeals of North Carolina.

Nov. 21, 1995.

Wallace & Whitley by Robert L. Inge, Salisbury, for plaintiff-appellant.

Carlyle Sherrill, Salisbury, for defendant-appellee.

JOHN, Judge.

Plaintiff appeals the trial court's judgment dismissing her complaint. She contends the court erred by: (1) finding a written agreement between the parties to be a marital contract as opposed to a separation agreement; and (2) concluding the contract was void as against public policy. We find plaintiff's arguments unpersuasive.

Pertinent facts and procedural information are as follows: Barbara E. Williams (plaintiff) and Bennie S. Williams (defendant) married 6 September 1959 and separated 30 May 1985. On 18 April 1988, the parties entered into an agreement (the Agreement) which recited that they were "considering the resumption of cohabitation," and required defendant to pay plaintiff $500.00 per month throughout the course of their marriage, the payments to continue "should [the] parties hereinafter again separate." Plaintiff and defendant separated anew in August 1993.

Plaintiff filed the instant action seeking specific performance of the Agreement and payment of $1,700.00 in alimony arrearage. Defendant answered admitting execution of the Agreement, but asserting it was void as a matter of public policy. He further moved that plaintiff's complaint be dismissed.

Defendant's motion was heard 16 December 1993 before the Honorable Frank M. Montgomery who entered judgment in pertinent part as follows:

2. That the basis of the Plaintiff's Complaint was Section Eight (8) of the Separation Agreement which reads as follows:

8. Husband and Wife agree that Husband shall continue to make a payment of Five Hundred Dollars ($500.00) per month to Wife for her suport [sic] and maintenance. Both parties acknowledge that should parties hereinafter again separate, Husband shall continue to pay permanent alimony of Five Hundred Dollars ($500.00) per month pursuant to prior Agreement of parties; that he will be collaterally estopped from pleading the resumption of marital relationship as a bar to his continued paying this sum; he acknowledges that the resumption of marital relationship shall have no effect on the payment of this amount as his obligation to pay said amount was and remains an intrical part of this property settlement and for that reason not modifiable and not affected by the resumption. [emphasis added]

....

6. That the contract between the parties is not a "premarital agreement" as defined by North Carolina General Statute 52B-2(1) because it is not an agreement "between prospective spouses made in contemplation of marriage and to be effective upon marriage" in that the parties hereto were married at the time of the making of this agreement.

7. That the agreement between the parties was not a separation agreement pursuant to North Carolina General Statute 52-10.1, because it was not executed in anticipation of a separation, but, in fact was occasioned by a resumption of the marital relationship between the parties; and further that its provisions, including specifically the provisions of Paragraph Eight (8), were to apply during the marital relationship as well as should there be a later separation of the parties.

8. That the agreement between the parties is a contract between husband and wife pursuant to North Carolina General Statute Section 52-10.

Based on these findings, the court concluded:

8. That Paragraph Eight (8) of the agreement between Plaintiff and Defendant violates public policy ... and is, therefore, void.

The court concluded by ordering plaintiff's complaint dismissed, and plaintiff gave notice of appeal to this Court 10 January 1994.

Plaintiff contends the trial court erred by finding the Agreement not to be a separation agreement under N.C.Gen.Stat. § 52-10.1 (1991), but rather a marital contract as provided in N.C.Gen.Stat. § 52-10 (1991) which by its terms was void as against public policy. We disagree.

N.C.Gen.Stat. § 52-10(a) (1991) provides:

Contracts between husband and wife not inconsistent with public policy are valid, and any ... married persons may, with or without a valuable consideration, release and quitclaim such rights which they ... may have acquired by marriage in the property of each other.... No contract ... between husband and wife during their coverture shall be valid ... for a longer time than three years ... unless it is in writing and is acknowledged by both parties before a certifying officer.

G.S. § 52-10.1 states in pertinent part:

Any married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid and binding in all respects....

A "separation agreement" is defined as " 'a contract between spouses providing for marital support rights and ... executed while the parties are separated or are planning to separate immediately.' " Small v. Small, 93 N.C.App. 614, 620, 379 S.E.2d 273, 277, disc. review denied, 325 N.C. 273, 384 S.E.2d 519 (1989) (citation omitted). "[T]he heart of a separation agreement is the parties' intention and agreement to live separate and apart forever...." In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976) (citation omitted).

The statutory sections set out above are distinguishable in that a separation agreement may affect support rights whereas G.S. § 52-10 refers only to "rights ... in property"; further, as indicated by the terms requiring formalities for contracts entered into "during coverture," a contract under G.S. § 52-10 may be entered into at any time during marriage, not only in contemplation of separation or divorce. See Edwards v. Edwards, 102 N.C.App. 706, 708, 403 S.E.2d 530, 531, disc. review denied, 329 N.C. 787, 408 S.E.2d 518 (1991) (under G.S. § 52-10.1, "parties to a divorce may enter into [an] agreement to settle the question of alimony ..."), and Eubanks v. Eubanks, 273 N.C. 189, 195, 159 S.E.2d 562, 567 (1968) (G.S. § 52-10, " 'relates to the release of an interest in property, but has no bearing whatsoever on the right of a wife to support ' " (citation omitted)). See also Howell v. Landry, 96 N.C.App. 516, 530, 386 S.E.2d 610, 618 (1989), disc. review denied, 326 N.C. 482, 392 S.E.2d 90 (1990) (although G.S. § 52-10 requires acknowledgment of contracts between spouses entered into "during coverture, the period of marriage, it does not require acknowledgment for premarital agreements.")

The document at issue herein recites that on the date of execution, the parties were "living separate and apart." However, it further provides that "the parties may desire to resume cohabitation as Husband and Wife in an effort to reconcile their differences," and that "[o]n the date of the signing of [the] agreement, the parties are considering the resumption of cohabitation." Thereafter, defendant is required to pay plaintiff $500.00 monthly, and "acknowledges that the resumption of marital relationship shall have no effect on the payment of this amount...."

The express and unambiguous language of the Agreement thus declares that the parties were not contemplating living "separate and apart forever," Adamee, 291 N.C. at 391, 230 S.E.2d at 545, when they executed the document, but rather were on the verge of resuming marital relations. Under Adamee and Small, therefore, the trial court did not err in determining the Agreement was not a separation agreement under G.S. § 52-10.1. See Robuck v. Robuck, 20 N.C.App. 374, 201 S.E.2d 557 (1974) (agreement which stated parties "have encountered serious marital difficulties" and one party is contemplating filing for divorce, id. at 375, 201 S.E.2d at 558, was not a separation agreement because face of document was silent with respect to parties' desire to live separate and apart), id. at 379, 201 S.E.2d at 561; cf. Stegall v. Stegall, 100 N.C.App. 398, 411, 397 S.E.2d 306, 313 (1990), disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991) (from terms of agreement which provide "parties shall henceforth live separate and apart ... free from all interference, authority and control, direct or indirect, by the other, as fully as if each party were unmarried" and circumstances of execution, "it is obvious" parties intended a separation agreement).

In addition, we note the following language in paragraph five of plaintiff's complaint:

[T]he parties reconciled and entered into a Post Nuptial Agreement on April 18, 1988, a copy of which is attached hereto and incorporated by reference.... (emphasis added).

Defendant in his answer admitted "the parties entered into a Post Nuptial Agreement which included the language specified in the Complaint," but asserted the language was "void as a matter of public policy." Had plaintiff considered the Agreement as founded upon the separation of the parties rather than a marital contract during cohabitation, that contention should have been forthcoming at the time her suit was instituted. Plaintiff's verified allegation that the Agreement was a "Post Nuptial Agreement" having been admitted by defendant, plaintiff cannot now be heard in this Court to assert a contrary position. Crawford v. Crawford, 214 N.C. 614, 618, 200 S.E. 421, 423 (1939) ("in other words, his mouth is shut, and he shall not say, that is not true which he had before in solemn manner asserted to be the truth").

Notwithstanding, plaintiff insists the statement in the Agreement that the parties were living separate and apart at the time of execution renders the document a separation agreement. Even were plaintiff's arguments persuasive, however, it remains well established that resumption of the marital relationship voids executory portions of a separation agreement, i.e., provisions for future alimony payments. Jones v. Lewis, 243 N.C. 259, 261, 90 S.E.2d 547, 549 (195...