Copyright 1998 - N.C. Administrative Office of the Courts


CARROLL H. CONDELLONE, Plaintiff v. PETER C. CONDELLONE and

MARKET MASTER SALES CO., INC., Defendants

No. COA97-967

(Filed 16 June 1998)

1.    Evidence and Witnesses § 671 (NCI4th)-- allowance of motion in limine -- appellate review of admissibility -- offer of evidence at trial

    Defendant former husband failed to preserve for appeal the issue of the admissibility of evidence of plaintiff former wife's cohabitation with an unrelated adult male where the trial court granted plaintiff's motion in limine to exclude such evidence, and defendant did not offer evidence of plaintiff's cohabitation at trial.

2.    Divorce and Separation § 39 (NCI4th)-- separation agreement -- alimony -- inadequate remedy at law

    Plaintiff established that she has no adequate remedy at law so that specific performance is available to her to enforce the alimony provision of a separation agreement where the separation agreement had not been incorporated into any court order; defendant has not made alimony payments due under the agreement for approximately five years; and defendant did not satisfy a judgment for arrearages previously obtained by plaintiff.

3.    Divorce and Separation § 39 (NCI4th)-- separation agreement -- alimony and alimony arrearage -- specific performance

    The trial court's order of specific performance requiring defendant former husband to pay plaintiff $1,500 per month in alimony and $1,000 per month in alimony arrearages was supported by (1) the trial court's finding that defendant has the ability to pay such amounts based upon evidence that his tax returns showed that his corporation paid him wages in excess of $4,000 per month and his current wife wages in excess of $6,000 per month, and his corporation pays defendant and his current wife $500 per month to rent office space in defendant's home, pays for cars and medical and dental insurance for defendant and his current wife, and provides life insurance and profit sharing for defendant, and (2) the trial court's finding that defendant engaged in a deliberate pattern of conduct to depress his income and thereby defeat plaintiff's rights under the separation agreement.

4.    Divorce and Separation § 39 (NCI4th)-- separation agreement -- alimony arrearages -- specific performance

    The trial court had the authority to order specific performance of alimony arrearages due under a separation agreement since entry of a previous judgment for arrearages but lacked authority to order specific performance of the unsatisfied previous judgment for arrearages.

5.    Divorce and Separation § 22 (NCI4th)-- separation agreement -- alimony arrearage -- specific performance -- change of circumstances -- judgment not modifiable

    The trial court could not modify a judgment ordering specific performance of defendant's alimony obligations under a separation agreement pursuant to N.C.G.S. Ch. 50 based upon changed circumstances where the separation agreement had never been incorporated into any court order.

    Appeal by defendant, Peter C. Condellone, from judgment dated 4 December 1996 and from order filed 1 May 1997, and cross- appeal by plaintiff from order filed 1 May 1997 by Judge William L. Daisy in Guilford County District Court. Heard in the Court of Appeals 1 April 1998.

    Craige, Brawley, Liipfert & Walker, L.L.P., by William W. Walker, for plaintiff appellant.

    Wyatt Early Harris & Wheeler, L.L.P., by A. Doyle Early, Jr., for defendant appellant.

    GREENE, Judge.

    Peter C. Condellone (Defendant) appeals from the trial court's 4 December 1996 judgment, which ordered specific performance of Defendant's alimony obligations under the parties' separation agreement, and 1 May 1997 order, which terminated Defendant's alimony obligations as of 25 October 1996. Carroll H. Condellone (Plaintiff) likewise appeals from the trial court's 1 May 1997 order.

    Plaintiff and Defendant married in March 1969, separated in August 1985, and divorced in November 1986. The parties entered into an agreement on 12 August 1987 (Separation Agreement) to resolve their remaining claims. The Separation Agreement has not been incorporated into any court order. Paragraph 18 of the Separation Agreement provides:

        ALIMONY. Husband shall pay to Wife as permanent alimony the following: $1,500.00 per month until Wife remarries or cohabits with an adult male to whom she is neither related nor married or until the death of either Husband or Wife. Said payments are due on or before the 10th day of each month.

Pursuant to this provision of the Separation Agreement, Defendant paid Plaintiff $1,500.00 per month alimony from August 1987 through April 1992. In May 1992, Defendant paid only $800.00. Defendant paid no alimony in June or July of 1992. Defendant paid only $750.00 in August 1992. Since that time, Defendant has made no alimony payments to Plaintiff.

    In February 1993, Plaintiff brought a breach of contract suit against Defendant seeking as damages the alimony arrearages then due under paragraph 18 of the Separation Agreement. The trial court entered a judgment by default against Defendant in the amount of $13,450.00 (plus costs). Because this judgment remained unsatisfied and alimony arrearages continued to accrue, Plaintiff subsequently filed three additional actions against Defendant (which were consolidated to form this case) seeking specific performance of paragraph 18 of the Separation Agreement.

    In his July 1996 deposition, Defendant testified that the parties' adult son had told Defendant that Plaintiff had cohabited with an unrelated adult male in 1990 or 1992, and Defendant and his current wife testified that Defendant had hired a private detective to investigate Plaintiff "[a]bout a year ago." Defendant filed answers to each of Plaintiff's complaints, but did not raise cohabitation as an affirmative defense in any of these answers. Two days prior to trial, however, Defendant sent Plaintiff a draft of a proposed affidavit from Defendant's private investigator. This affidavit revealed that Defendant's private investigator had evidence that Plaintiff had cohabited with an unrelated adult male from 1 June 1996 through 22 October 1996.

    After receiving the private investigator's proposed affidavit from Defendant, Plaintiff made a motion in limine requesting the trial court to exclude any evidence that Plaintiff had cohabited with an adult male to whom she was not related or married, on the ground that cohabitation constituted an affirmative defense which Defendant had not raised in his answers. The trial court granted Plaintiff's motion in limine, and did not allow Defendant to present evidence of Plaintiff's cohabitation.

    In the 4 December 1996 judgment, the trial court found:

        Defendant has not asserted and there is no evidence that [D]efendant is excused from performance of the requirements of paragraph 18 [of the Separation Agreement] because . . . [P]laintiff has breached some obligation imposed on her by the Separation Agreement.

The trial court found that Defendant and his current wife are the only directors, officers, and employees of Market Master Sales Co., Inc. (Market Master). "Market Master is in good financial health. It had gross income in 1993 of $202,434.00, in 1994 of $310,732.00, and in 1995 of $432,067.00. Gross income in 1996 should at least equal that of 1996 [sic]." The trial court further found:

        Defendant did not present any evidence of his specific monthly living expenses . . . [and] testified only that he has monthly net income of $2,412.00 and that his living expenses exceed that figure. However, [D]efendant did not provide any factual basis for that statement, and, in light of the other evidence of [D]efendant's income, the Court does not accept it as accurate.

The trial court found that Market Master, in addition to paying Defendant $500.00 per month rent for the use of office space in Defendant's home, pays for the cars driven by Defendant and his current wife and for their medical and dental insurance. Market Master also provides life insurance for Defendant, and profit sharing. Defendant currently has a retirement account with Market Master in excess of $15,600.00. Although Defendant did not present credible evidence of his current income, tax records revealed that Defendant's wages in 1995 were in excess of $4,000.00 per month, and the wages of Defendant's current wife in 1995 were in excess of $6,000.00 per month. Finally, the trial court found that Defendant's salary from Market Master decreased "at about the time that [D]efendant stopped paying [P]laintiff the alimony payments due under the Separation Agreement." The trial court noted that this "evidence[d] a deliberate pattern of conduct by [D]efendant to depress [his] income and thereby defeat [P]laintiff's rights under the Separation Agreement." The trial court found as liabilities payments of $400.00 per month for personal debt, and a $1,154.00 monthly mortgage payment on Defendant's $127,000.00 home. Based on these findings, the trial court concluded that Defendant has the "means and ability to carry out the terms of paragraph 18 of the Separation Agreement and to pay the arrearages due [P]laintiff."

    The trial court entered judgment on 4 December 1996 ordering that Plaintiff recover of Defendant $66,000.00 in alimony arrearages which had accrued since entry of the 1993 judgment for damages against Defendant. The trial court ordered Defendant to pay Plaintiff the $1,500.00 monthly alimony payment as provided in the Separation Agreement, as well as an additional $1,000.00 per month until both the $66,000.00 found to be due in this action and the 1993 judgment in the amount of $13,450.00 were paid in full.

    Subsequently, on 20 December 1996, Defendant filed a motion for new trial and relief from judgment, pursuant to the North Carolina Rules of Civil Procedure. In this 20 December 1996 motion, Defendant contended that the trial court should grant a new trial pursuant to Rule 59(a)(4) (newly discovered material evidence), Rule 59(a)(7) (insufficient evidence), Rule 59(a)(8) (error in law), and Rule 59(a)(9) (any other reason heretofore recognized as grounds for new trial). Defendant also contended in his 20 December 1996 motion that the trial court should grant him relief from the 4 December 1996 judgment pursuant to Rule 60(b)(2) (newly discovered evidence), Rule 60(b)(3) (fraud), Rule 60(b)(4) (judgment is void), and Rule 60(b)(5) (judgment is no longer equitable). The trial court denied Defendant's Rule 59 and 60 motion on 1 May 1997. Defendant has not cross-assigned error to this denial, and does not argue in his brief before this Court that

this denial constitutes error.

    On 23 December 1996, Defendant filed (and served on Plaintiff) a motion to modify the 4 December 1996 judgment pursuant to a material change of circumstances. Defendant's 23 December 1996 motion states: "On October 23, 1996, [Defendant] received significant evidence that [Plaintiff] was cohabitating [sic] in that [Defendant] received a copy of a verified petition filed by [Plaintiff] against Ralph L. Hunt alleging that she and Ralph L. Hunt were living together and that Ralph L. Hunt had assaulted her . . . ." Defendant's 23 December 1996 motion further alleged:

        [Defendant] attempted to introduce evidence of cohabitation, including this verified petition, into evidence at the hearing on October 25, 1996 on the issue of the breach of the Separation Agreement and specific performance for the permanent alimony provisions, but the Presiding Judge allowed a motion in limine based, in part, upon the finding that "[Defendant] had not raised the issue of cohabitation in any way or otherwise put [P]laintiff on notice of [his] intention to raise the issue of cohabitation at trial," although [Defendant] "had given [P]laintiff only informal notice on October 23, 1996 of [his] intention to raise the issue, when [he] sent [P]laintiff's attorney a draft of a proposed affidavit from a private investigator."

Defendant requested that the 4 December 1996 judgment be modified, terminating Plaintiff's right to future alimony due to "a material change of circumstances occurring since the hearing on October 25, 1996." The trial court, in its order filed 1 May 1997, found that "Plaintiff cohabited with an adult male to whom she is neither related nor married during the period June 1, 1996, to October 22, 1996." The trial court granted Defendant's 23 December 1996 motion to modify and ordered that Plaintiff's right to receive future alimony payments pursuant to the Separation Agreement be terminated "effective as of the trial of this action on October 25, 1996."

    The issues are whether: (I) a motion in limine is appealable; (II) Defendant was able to pay alimony arrearages; (III) the trial court may order specific performance of a previous judgment; and (IV) the trial court had the authority to modify the 4 December 1996 judgment pursuant to Chapter 50 of the North Carolina General Statutes.

    We note preliminarily that Defendant has subjected the majority of his appeal to dismissal due to his failure to state the legal basis for four of his five assignments of error. See N.C.R. App. P. 10(c)(1) (requiring "[e]ach assignment of error [to] . . . state plainly, concisely and without argumentation the legal basis upon which error is assigned"); Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988). In our discretion, however, we address Defendant's contentions. N.C.R. App. P. 2.