VALERIE JEAN SCHLITT
v
.
Wake County
No. 00 CVD 2120
MICHAEL GEORGE SCHLITT
William J. Cotter for plaintiff-appellant.
Nicholls & Crampton, P.A., by Nicholas J. Dombalis, II for
defendant-appellee.
THOMAS, Judge.
Plaintiff, Valerie Jean Schlitt, appeals a grant of summary
judgment dismissing her claims for alimony, spousal support,
equitable distribution, and attorney fees. Defendant, Michael
George Schlitt, had pled a ratified separation agreement as a bar
to her claims. For the reasons discussed herein, we affirm the
trial court.
The facts are as follows: Plaintiff and defendant were married
9 October 1993. They separated on or about 14 December 1999, with
no children being born of the marriage, and did not resume their
marital relationship. That same month, defendant and plaintiffsigned a separation agreement by which: (1) defendant would
continue to cover plaintiff's dental insurance for one year; (2)
income taxes would be filed jointly for 1999 and split equally
between defendant and plaintiff; (3) debts would be the
responsibility of whoever acquires the debt; (4) defendant would
pay plaintiff a one-time sum of $3,000; and (5) plaintiff would
receive certain items of personal property listed in the agreement.
On 28 February 2000, plaintiff filed a complaint for post-
separation support, alimony, equitable distribution and attorney
fees. Defendant answered, pleading the separation agreement as an
affirmative defense to all of plaintiff's requests. However, as an
alternative pleading, he also made a request for equitable
distribution.
In a hearing on post-separation support only, the trial court
found that the separation agreement did not prevent plaintiff from
pursuing the post-separation support claim in that the agreement
was not notarized. The trial court directed defendant to pay
plaintiff $529 per month.
Defendant then moved for summary judgment under Rule 56 of the
North Carolina Rules of Civil Procedure as to alimony, equitable
distribution and attorney fees. He also motioned for modification
or termination of post-separation support, alleging a substantial
change of circumstances. Prior to hearing, defendant amended the
post-separation support motion by claiming the separation agreementhad been notarized after the initial hearing and should apply
retroactively to bar the claim for support.
On 20 November 2000, the trial court granted defendant's
motion for summary judgment, finding “no genuine issue of material
fact and Defendant is entitled to a judgment as a matter of law on
the issues of equitable distribution and spousal support . . . .
Plaintiff's claims for spousal support, including post-separation
support and alimony are dismissed with prejudice.” Plaintiff
appeals.
By her first and second assignments of error, plaintiff argues
the trial court committed reversible error in granting defendant's
summary judgment motion and dismissing her claims with prejudice.
She claims the separation agreement is the result of duress and
coercion and “not final.”
We note summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2000). It is also appropriate when it is apparent from the record
that there can be no recovery from the plaintiff, even assuming
plaintiff's allegations are true. Lowder v. Lowder, 68 N.C. App.
505, 315 S.E.2d 520, cert. den., 311 N.C. 759, 321 S.E.2d 138
(1984). A married couple, upon separation, may determine for
themselves how to divide their estate by entering into a valid
separation agreement as opposed to subjecting themselves to
equitable distribution. Anderson v. Anderson, (No. COA00-1008)
(Filed: Aug. 7, 2001). A separation agreement is a contract and
its meaning and effect are “ordinarily determined by the same rules
which govern the interpretation of contracts.” Lane v.
Scarborough, 284 N.C. 407, 409, 200 S.E.2d 622, 624 (1973). In
construing a written contract, “[i]t must be presumed the parties
intended what the language used clearly expresses, and the contract
must be construed to mean what on its face it purports to mean.”
Id. (Citations omitted). Therefore, whether a separation
agreement barred a spouse's further claims for support is a
question of law open to summary judgment. Anderson v. Anderson,
(No. COA00-1008) (Filed: Aug. 7, 2001).
To be valid, “a separation agreement must be untainted by
fraud, and must be in all respects fair, reasonable, and just.”
Lancaster v. Lancaster, 138 N.C. App. 459, 530 S.E.2d 82 (2000)
(quoting Johnson v. Johnson, 67 N.C. App. 250, 255, 313 S.E.2d 162,
165 (1984)). It must have been notarized by a certifying officer.
N.C. Gen. Stat. §§ 52-10, 52-10.1 (1999). It “must have been
entered into without coercion or the exercise of undue influence,
and with full knowledge of all the circumstances, conditions, and
rights of the contracting parties.” Id. “Coercion” is defined as“compelling by force or arms or threat.” Black's Law Dictionary
258 (6th ed. 1990). Duress is “when one, by the unlawful act of
another, is induced to make a contract or perform or forego some
act under circumstances which deprive him of the exercise of free
will.” Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05
(1971).
We note that although the separation agreement was not
notarized at the time of signing, it was subsequently notarized by
a notary public. This action conforms to the N.C. Supreme Court's
holding in Lawson v. Lawson, 321 N.C. 274, 362 S.E.2d 269 (1987).
Plaintiff does allege that defendant assaulted her in the past
and forced her to sign the agreement by saying if she did not
accept the terms, he would have her evicted from their home, which
was owned by defendant's mother. The evidence also shows however,
that when defendant presented plaintiff with a proposed separation
agreement, she did not immediately sign it. Instead, she took it
with her, consulted an attorney, and even modified the terms before
eventually signing it.
Even if evidence regarding duress or coercion were adequate to
allow the action to survive summary judgment, plaintiff would still
not prevail.
An agreement executed under duress or coercion is invalid and
not a bar to equitable distribution unless the separation agreement
was ratified by plaintiff. Cox v. Cox, 75 N.C. App. 354, 330S.E.2d 506 (1985); Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d
614, rev. denied, 305 N.C. 586, 292 S.E.2d 571 (1982); Link v.
Link, 278 N.C. 181, 179 S.E.2d 697 (1971).
Ratification occurs when one “authorize[s] or otherwise
approve[s], retroactively, an agreement or conduct either expressly
or by implication.” Black's Law Dictionary 1262 (6th ed. 1990). A
transaction procured by duress may be ratified by a victim so as to
preclude subsequent suit to set the transaction aside if, at the
time of the signature, the “victim” had full knowledge of facts and
was then capable of acting freely. Fallston Finishing, Inc. v.
First Union Nat. Bank, 76 N.C. App. 347, 333 S.E.2d 321, cert.
den., 314 N.C. 664, 336 S.E.2d 621 (1985).
In the instant case, the agreement calls for defendant to pay
for a one-year term of dental insurance coverage on plaintiff and
for plaintiff to receive twenty-two items of personal property
listed in the agreement. Plaintiff accepted the coverage and took
the property. Further, the agreement provides that defendant give
plaintiff $3,000 as a “one time sum.” He did and she accepted it.
Taking plaintiff's allegations as true, she was estopped from
claiming further support by ratifying the separation agreement and
cashing the $3,000 check from defendant. A party cannot dispute
the validity of a contract after that party has accepted the
benefits of the agreement. Brooks v. Hackney, 329 N.C. 166, 404
S.E.2d 854 (1991). Moreover, when defendant tendered the check for $3,000, he
wrote the words “settlement in full” on it. Our Supreme Court has
held that an acceptance of a check tendered as full payment
establishes accord and satisfaction, which would bar action on a
claim disputing the amount received. Phillips v. Phillips
Construction Co., 261 N.C. 767, 136 S.E.2d 48 (1964). See also
North Carolina Farm Bureau Mut. Ins. Co. v. Bost, 126 N.C. App. 42,
483 S.E.2d 452, rev. denied, 347 N.C. 138, 492 S.E.2d 25 (1997).
Although a payee may express reservations about the check amount,
cashing it constitutes evidence of an intent to accept an offer of
accord and satisfaction. See Zanone V. RJR Nabisco, Inc., 120 N.C.
App. 768, 463 S.E.2d 584 (1995), rev. denied, 342 N.C. 666, 467
S.E.2d 738 (1996).
The evidence also shows that defendant presented plaintiff
with a proposed separation agreement. She did not immediately sign
it, but instead took it with her and consulted an attorney.
Plaintiff even made changes before eventually signing it.
In all, plaintiff took possession of the items listed in the
agreement, deposited into her account the $3,000 check from
defendant, and accepted the dental insurance coverage. Both
parties properly performed in accordance with the agreement.
Accordingly, we hold the separation agreement was ratified and
effectively bars plaintiff's claims.
AFFIRMED. Judges WYNN and HUDSON concur.
Report per Rule 30(e).
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