Divorce--alimony--consent order--termination for cohabitation--
separation agreement not affected
An order directing defendant former husband to pay monthly
alimony to plaintiff former wife was a consent order rather than
an order of specific performance of the parties' separation
agreement which required defendant to pay alimony to plaintiff
where the parties did not submit the separation agreement to the
trial court for approval and the court did not incorporate the
separation agreement or any part thereof into its order.
Therefore, this order was modifiable, and the trial court erred
by denying defendant's motion to terminate alimony under the
consent order pursuant to N.C.G.S. § 50-16.9 on the ground of
cohabitation by plaintiff where plaintiff admitted she was
cohabiting with an adult male. However, the termination of
defendant's court-ordered alimony obligation does not affect
defendant's contractual alimony obligation under the parties'
separation agreement.
Connor, Bunn, Rogerson & Woodard, P.L.L.C., by Elizabeth
McKinney Whitt, for the plaintiff-appellee.
Craft, Levin & Abney, L.L.P., by Wesley Abney, for the
defendant-appellant.
WYNN, Judge.
This appeal arises from the trial court's denial of the
defendant's motion to terminate alimony under N.C. Gen. Stat. § 50-
16.9.
The plaintiff and the defendant were married on 3 July 1975
and separated on 23 September 1992. Two children were born of the
marriage. The parties executed a valid Separation Agreement on 26January 1994, which provided, inter alia, for monthly alimony and
child support payments by the defendant to the plaintiff. The
alimony provision required the defendant to make monthly payments
of $450.00 to the plaintiff “on or before the 5th day of each
month,” but provided for the termination of such obligation “upon
the death of [the defendant], the death or remarriage of [the
plaintiff], whichever comes first.” The parties subsequently
divorced but the Separation Agreement was not incorporated into the
divorce judgment.
On 21 October 1997, the plaintiff filed a complaint seeking
specific performance of certain provisions of the Separation
Agreement. The trial court entered a consent order on 3 December
1998 requiring the defendant to, inter alia, continue making
monthly child support payments to the plaintiff. The parties'
older child reached eighteen years of age on 29 January 1999, and
on 6 May 1999, the defendant moved to modify the child support
payments required by the 3 December 1998 consent order.
On 27 May 1999, the trial court entered an order reducing the
defendant's monthly child support obligation. The trial court's
order also made the following finding of fact:
13. The parties have agreed that defendant
shall also pay the sum of $450.00 per month in
alimony to plaintiff, said payment to be made
directly to plaintiff and not through the
office of the Clerk of Superior Court. Said
alimony payment shall be paid in full by the
fifteenth day of each month.
The trial court thereby ordered, by consent, that:
5. Defendant shall pay the sum of $450.00
per month in alimony to plaintiff, said
payment to be made directly to plaintiff andnot through the office of the Clerk of
Superior Court. Said alimony payment shall be
paid in full by the fifteenth day of each
month. Except as modified herein, the
previous order of December 03, 1998 remains in
full force and [e]ffect.
On 15 July 1999, the defendant moved to terminate alimony
under N.C. Gen. Stat. § 50-16.9 (1995), on the grounds of
cohabitation by the plaintiff, as such term is defined in the
statute. On 25 February 2000, the trial court entered an order
wherein the court concluded that the defendant's contractual
obligation to pay alimony pursuant to the Separation Agreement “is
not terminated by plaintiff's cohabitation as the terms of the
parties' Separation Agreement are not an order or judgment of the
court.” Accordingly, the trial court denied the defendant's motion
and ordered the defendant to continue paying alimony to the
plaintiff “pursuant to the terms of the Consent Order dated May 27,
1999.” From this 25 February 2000 order, the defendant appeals.
The defendant's sole argument on appeal is that the trial
court erred in denying his motion to terminate court-ordered
alimony pursuant to the 27 May 1999 consent order, and in ordering
the defendant to continue paying alimony pursuant to that court
order. The defendant contends that his obligation to pay alimony
pursuant to the 27 May 1999 order was subject to modification or
termination pursuant to N.C. Gen. Stat. § 50-16.9. For the reasons
below, we agree.
In Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964), our
Supreme Court discussed at length the nature of two types of
consent judgments regarding alimony: Consent judgments for the payment of
subsistence to the wife are of two kinds. In
one, 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. Such a judgment
constitutes nothing more than a contract
between the parties made with the approval of
the court. [] In the other, the 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.
A contract-judgment of the first type is
enforceable only as an ordinary contract. It
may not be enforced by contempt proceedings
and, insofar as it fixes the amount of support
for the wife, it cannot be changed or set
aside except with the consent of both parties
in the absence of a finding that the agreement
was unfair to the wife or that her consent was
obtained by fraud or mutual mistake.
. . .
A judgment of the second type, being an order
of the court, may be modified by the court at
any time changed conditions make a
modification right and proper. The fact that
the parties have agreed and consented to the
amount of the alimony decreed by the court
does not take away its power to modify the
award or to enforce it by attachment for
contempt should the husband wilfully fail to
pay it.
Id. at 69, 136 S.E.2d at 242-43 (citations omitted). As stated in
Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982):
Parties to a divorce may enter into a valid
agreement settling the question of alimony,
and unless the court then orders alimony to be
paid, the terms of the agreement are binding
and can only be modified by the consent of
both parties.
306 N.C. at 524, 293 S.E.2d at 797. However, where the court
incorporates the terms of a separation agreement into its judgment,
the agreement is superseded by the court's order. Mitchell v.Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967).
The bifurcated approach to consent judgments discussed in Bunn
came to an end with our Supreme Court's decision in Walters v.
Walters, 307 N.C. 381, 298 S.E.2d 338 (1983). The Court therein
noted that a trial court may exercise its contempt powers to
enforce all provisions of a court-adopted separation agreement,
“since it is the court's order and not the parties' agreement which
is being enforced.” Id. at 385, 298 S.E.2d at 341. The Court
abolished the then-existing dual consent judgment approach,
establishing a rule that:
[W]henever the parties bring their separation
agreements before the court for the court's
approval, it will no longer be treated as a
contract between the parties. All separation
agreements approved by the court as judgments
of the court will be treated similarly, to-
wit, as court ordered judgments. These court
ordered separation agreements, as consent
judgments, are modifiable, and enforceable by
the contempt powers of the court, in the same
manner as any other judgment in a domestic
relations case.
Id. at 386, 298 S.E.2d at 342.
In Erhart v. Erhart, 67 N.C. App. 189, 312 S.E.2d 534 (1984),
this Court considered the question of whether, by entering an order
for specific performance of the terms of a deed of separation, the
trial court thereby derives the power to subsequently modify an
alimony provision contained in the deed of separation. This Court
held that the mere entry of an order of specific performance does
not empower the trial court to alter the terms of the contract,
stating: The [trial c]ourt can, in the exercise of its
powers in equity, order specific performance
of only such amount [of alimony] as it finds
to be proper. This, however, does not alter
[the dependent spouse's] rights at law under
the agreement. “We hold that the Court in the
exercise of its powers in equity could modify
the prior judgment ordering specific
performance of the separation agreement of the
parties but that this modification did not
affect the parties' rights at law under the
agreement.” Harris v. Harris, 307 N.C. 684,
685-86, 300 S.E.2d 369, 371 (1983).
Id. at 191, 312 S.E.2d at 535. That is, where the trial court
orders the specific performance of a separation agreement, the
court may subsequently modify the specific performance order, but
such modification affects only the order of specific performance,
and does not affect the rights and obligations of the parties under
the original separation agreement. See id.; Harris, 307 N.C. at
688, 300 S.E.2d at 372-73.
In the instant case, the plaintiff's “Complaint for Specific
Performance” filed on 21 October 1997 requested that the trial
court “specifically enforce” the Separation Agreement. The 2
December 1998 consent order entered by the trial court concluded
that “[t]he parties executed a valid separation agreement and the
Plaintiff is entitled to specifically enforce the terms and
conditions set forth therein.” This consent order did not address
the Separation Agreement's alimony provision.
However, the 27 May 1999 consent order, entered by the trial
court in response to the defendant's motion to modify child
support, included a finding that the parties agreed that the
defendant shall pay the plaintiff $450.00 monthly in alimony. Notably absent from this finding of fact is any reference to the
Separation Agreement. Likewise, the directive ordering the
defendant to make such payments to the plaintiff makes no reference
to the Separation Agreement. It is not apparent from the record
that the parties brought the Separation Agreement, or any portion
thereof, before the trial court for approval as a judgment of the
court; nor does it appear that the parties requested that the court
order the specific performance of the Separation Agreement's
alimony provision. We further note that the court-ordered alimony
differs from the contractual alimony provision in the Separation
Agreement, extending the payment deadline to the fifteenth day of
each month, rather than the fifth day of each month as mandated by
the Separation Agreement.
The trial court's 27 May 1999 order, which directs the
defendant to make monthly alimony payments, is in the nature of a
consent order rather than an order for specific performance. This
order does not direct such alimony payments to be made under the
terms of the Separation Agreement, nor does it order specific
performance of the alimony provision therein. Rather, the court
order finds as fact that “[t]he parties have agreed that defendant
shall [] pay,” and accordingly orders the defendant to pay, such
alimony.
We conclude that the trial court's 27 May 1999 order
constituted a consent order rather than an order of specific
performance of the Separation Agreement, and therefore the order of
alimony therein was subject to modification by the trial court
under N.C. Gen. Stat. § 50-16.9. See Rowe v. Rowe, 305 N.C. 177,184, 287 S.E.2d 840, 844 (1982) (by enacting N.C. Gen. Stat. &
#167; 50-
16.9, our legislature “clearly expressed that it is the public
policy of this state that consent orders to pay alimony are
modifiable”).
N.C. Gen. Stat. § 50-16.9(b) provides that where “a dependent
spouse who is receiving . . . alimony from a supporting spouse
under a judgment or order of a court of this State . . . engages in
cohabitation, the . . . alimony shall terminate.” The defendant
alleges in his motion to terminate alimony, and the plaintiff
acknowledges in her response thereto, that she “is engaged in
cohabitation with an adult male,” as that term is defined in N.C.
Gen. Stat. § 50-16.9. As such, the trial court erred in denying
the defendant's motion to modify its 27 May 1999 order pertaining
to alimony by terminating the defendant's court-ordered alimony
obligation.
Nonetheless, we emphasize that the termination of the
defendant's court-ordered alimony obligation under the 27 May 1999
consent order in no way affects the defendant's contractual alimony
obligation under the parties' Separation Agreement, as the parties
neither submitted the Separation Agreement to the trial court for
approval, nor did the trial court specifically incorporate the
Separation Agreement, or any terms thereof, into the 27 May 1999
consent order. See Walters, 307 N.C. at 386-87, 298 S.E.2d at 342
(parties to a separation agreement can avoid having agreement
treated as a modifiable court-ordered judgment by not submitting
the agreement to the court; parties may choose to submit portions
of the agreement to the court for approval, rendering suchportions, and such portions alone, enforceable and modifiable as a
court order); Pitts v. Broyhill, 88 N.C. App. 651, 655, 364 S.E.2d
738, 741 (1988) (“once a separation agreement is incorporated into
a court order, it loses its character as a contract and becomes a
court order”). Where a separation agreement is neither submitted,
by one or both parties thereto, to the trial court for its
approval, nor specifically incorporated into a court order or
judgment, the separation agreement is preserved as a contract and
remains enforceable and modifiable only under traditional contract
principles. See Walters, 307 N.C. at 386, 298 S.E.2d at 342. The
27 May 1999 order was a consent order, and the alimony provision
therein was by consent of the parties, without any apparent basis
in the Separation Agreement; thus, the termination of the
defendant's alimony obligation under the 27 May 1999 order does not
diminish or affect his contractual alimony obligation under the
Separation Agreement.
The trial court's 25 February 2000 order is therefore reversed
and remanded for entry of an order not inconsistent with this
opinion.
Reversed and remanded.
Judges TIMMONS-GOODSON and HUDSON concur.
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