Appeal by plaintiff from order filed 12 March 1999 by Judge
Kenneth C. Titus in Durham County District Court. Heard in the
Court of Appeals 13 February 2001.
Tracy Hicks Barley & Associates, P.A., by Tracy Hicks Barley,
for plaintiff-appellant.
Frances P. Solari for defendant-appellee.
GREENE, Judge.
Lundy Langston (Plaintiff) appeals an order filed 12 March
1999, dismissing Plaintiff's motion for contempt against Charles E.
Johnson, Sr. (Defendant).
The record shows that on 22 March 1991, Plaintiff filed a pro
se verified complaint for divorce in Durham County, seeking an
absolute divorce from Defendant and “further relief as the Court
may deem just and proper.” Both parties were present at the
hearing on Plaintiff's complaint. On 6 June 1991, the trial court
filed a judgment containing the following pertinent findings of
fact:
7. That there were two children, Tari
Krystal Aquia Johnson, born November 20, 1974and Charles Edward Johnson, Jr., born October
17, 1979, born of the marriage of . . .
Plaintiff and Defendant.
8. That Plaintiff is granted sole
physical custody of the children and Defendant
is granted liberal visitation rights.
9. That both Plaintiff and Defendant are
granted joint legal custody.
10. That Plaintiff is responsible for
major medical for both children and Defendant
will be responsible for amounts not covered.
11. That Defendant is responsible for
life insurance for both children.
12. That both Plaintiff and Defendant are
equally responsible for college tuition for
both children.
13. That Defendant is to pay $340,
monthly, in child support to Plaintiff.
The 6 June 1991 judgment concluded: “IT IS THEREFORE, ORDERED,
ADJUDGED AND DECREED that the bonds of matrimony heretofore
existing between Plaintiff and Defendant be, and they . . . hereby
are, dissolved, and Plaintiff and Defendant are granted an absolute
divorce from each other.”
On 31 July 1997, Plaintiff filed a Motion and Notice of
Hearing for Modification of Child Support Order, which the trial
court heard on 4 September 1997. The trial court subsequently
ordered, inter alia, the following:
1. That . . . [D]efendant shall forward
to [P]laintiff an amount of $31.00. This
amount constitutes [D]efendant's current child
support obligation through October, 1997, when
the minor child, Charles Edward Johnson, Jr.,
born October 17, 1979, shall reach majority.
. . . .
3. That . . . [D]efendant is onlyobligated t
o pay one-half of the tuition per
the previous court order entered between the
parties on June 6, 1991.
. . . .
7. That . . . [D]efendant shall
reimburse . . . [P]laintiff for one-half of
the daughter's Fall, 1997, tuition at North
Carolina State University.
In May 1998, Plaintiff filed a Motion to Show Cause for
Failure to Pay Child Support, alleging Defendant had violated the
6 June 1991 judgment by failing to pay child support. The trial
court thereafter issued an Order to Show Cause for Failure to Pay
Child Support, stating that “there was probable cause that . . .
Defendant is in contempt of Court in that he failed to pay
$22,100.00 . . . in child support to . . . Plaintiff as he was
ordered to do in the Order entered by this Court on June 6, 1991.”
On 15 December 1998, the matter came before the trial court.
Upon reviewing the court file and prior to the parties' arguments,
the trial court found that, although the 6 June 1991 judgment
contained findings of fact regarding child support, it “decreed and
ordered only that the bonds of matrimony between the parties be
dissolved” and there was no valid order regarding child support.
The trial court, therefore, concluded it lacked jurisdiction to
hear Plaintiff's motion for contempt. Accordingly, Plaintiff's
motion was dismissed “due to a lack of jurisdiction by the court.”
_____________________________
The dispositive issue is whether the trial court's 6 June 1991
judgment contained a valid order for Defendant to pay child support
when the order requiring Defendant to pay child support was not
contained in the decretal portion of the judgment. Generally, a judgment is in a form that contains findings,
conclusions, and a decree. The decretal portion of a judgment is
that portion which adjudicates the rights of the parties.
See 46
Am. Jur. 2d
Judgments § 99 (1994). The failure to follow this
precise form, however, is not fatal to the judgment.
Id. § 83.
“The sufficiency of a writing claimed to be a judgment is to be
tested by its substance rather than its form.”
Id.;
see In re
Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)
(appellate court not bound by trial court's classification of
matter as a conclusion of law or a finding of fact).
In this case, the 6 June 1991 judgment contains an unequivocal
directive that Defendant pay child support in the amount of $340.00
per month. Although this directive was not contained in the
decretal portion of the judgment, it nonetheless constitutes a
decree of the trial court. To hold otherwise would place form over
substance, which this Court is not required to do.
Reversed and remanded.
Judge HUDSON concurs.
Judge MCCULLOUGH concurs in result in separate opinion.
=====================================
McCULLOUGH, Judge, concurring in the result.
I would also reverse the trial court's order, but on the
grounds of equitable estoppel. The 6 June 1991 judgment was
explicitly recognized as a child support order by both parties who
were present when it was entered. Defendant also signed the order,
thereby acknowledging his awareness of its contents. Both
plaintiff and defendant reared their children and otherwise managedtheir affairs for seven years as if a valid order were in place.
A subsequent order filed 12 January 1998 also acknowledged the 6
June 1991 order as a valid child support order. In his reply to
plaintiff's Motion to Show Cause, defendant stated that he had "not
willfully refused to make monthly child support payments as
required under the previous and last order in this matter of June
6, 1991" and further, that "the parties both did not modify or
change the previously entered court order, but rather, worked with
one another based upon verbal agreement and physical locality of
the child."
Under the facts of this case, defendant is equitably estopped
from denying the validity of the 6 June 1991 order regarding
defendant's duty to pay child support. In
Chance v. Henderson, 134
N.C. App. 657, 663, 518 S.E.2d 780, 784 (1999), this Court held
that, although the consent order entered by the trial court was
invalid, defendant's subsequent actions "ratified and validated the
Order," such that defendant was estopped from challenging the
judgment. Where a party engages in positive acts that amount to
ratification resulting in prejudice to an innocent party, the
circumstances may give rise to estoppel.
Howard v. Boyce, 254 N.C.
255, 265-66, 118 S.E.2d 897, 905 (1961). Further, "'[a] party who,
with knowledge of the facts, accepts the benefits of a transaction,
may not thereafter attack the validity of the transaction to the
detriment of other parties who relied thereon.'"
Yarborough v.
Yarborough, 27 N.C. App. 100, 105-06, 218 S.E.2d 411, 415,
cert.denied, 288 N.C. 734, 220 S.E.2d 353 (1975)(quoting 3 Strong's N
.C.
Index 2d
Estoppel § 4);
see also Amick v. Amick, 80 N.C. App. 291,
294-95, 341 S.E.2d 613, 615 (1986) (defendant estopped from denying
validity of separation agreement where plaintiff relied upon and
performed obligations pursuant to terms thereof). In the instant
case, defendant explicitly recognized and complied with (at least
to some extent) the terms of the 6 June 1991 order for seven years.
Nothing in the record indicates that defendant objected to or
repudiated the order before the trial court,
sua sponte, rejected
the judgment as invalid as to child support.
Further, it is a well-established principle of law in North
Carolina that no appeal lies from one superior court judge to
another.
Smithwick v. Crutchfield, 87 N.C. App. 374, 376, 361
S.E.2d 111, 113 (1987). The same rule also applies to district
court judges.
Johnson v. Johnson, 7 N.C. App. 310, 313, 172 S.E.2d
264, 266 (1970). Accordingly, one district court judge may not
correct errors of law committed by another; such errors may only be
corrected by an appellate court.
See id. The 12 January 1998
order clearly recognized the validity of the 6 June 1991 child
support order. By rejecting the 6 June 1991 order as invalid as to
child support, the trial court also implicitly and unacceptably
modified the 12 January 1998 order regarding defendant's child
support obligations. Defendant did not appeal the 12 January 1998
order, which specifically references defendant's child supportobligations under the previous 6 June 1991 judgment.
Upon fully reviewing the pleadings, the orders, and the
parties' subsequent behavior pursuant to the orders, it is clear
that both parties intended that defendant should pay monthly child
support. I would hold that defendant is equitably estopped from
denying the validity of the 6 June 1991 order and accordingly
reverse the trial court's dismissal of plaintiff's motion for
contempt.
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