SHELBY JEAN GILMORE,
Plaintiff,
v
.
BOBBY LEE GARNER,
Defendant.
Finger, Parker, Avram & Roemer, L.L.P., by Raymond A. Parker,
for plaintiff appellee.
Franklin Smith for defendant appellant.
TIMMONS-GOODSON, Judge.
Bobby Lee Garner (“defendant”) appeals from an order of the
trial court granting summary judgment in favor of defendant's
former wife, Shelby Jean Gilmore (“plaintiff”), and from an order
granting plaintiff a 29.5% portion of defendant's divisible
railroad retirement benefits. For the reasons stated herein, we
affirm the order and judgment of the trial court.
The relevant factual history of the present appeal is as
follows: The parties married one another on 18 December 1955 and
remained together until 24 April 1988, when they separated. On 24
January 1989, the parties entered into a “Contract of Separation
and Property Settlement Agreement” (“the separation agreement”).
Section sixteen of the separation agreement included the following
language: It is stipulated and agreed that Husband has a
substantial retirement account built up under
the Railroad Retirement Act. Wife agrees not
to make any demand on Husband at the present
time, for any portion of this Railroad
Retirement. However, it is stipulated and
agreed by both parties that each of them may
draw Railroad Retirement benefits in
accordance with law when they are eligible to
so draw, and that the other party will not
contest any of said benefits.
On 14 November 2000, plaintiff filed a complaint in Surry
County District Court seeking specific performance of the
separation agreement. In her complaint, plaintiff alleged that
defendant had “failed and refused to cooperate with the plaintiff
in allowing the plaintiff to receive from the Railroad Retirement
Board those benefits to which she was entitled and has contested
and denies she has any rights to said benefits.” Plaintiff
requested that the trial court enforce specific performance of the
separation agreement by means of a qualified domestic relations
order. In addition to the complaint, plaintiff moved the court
for summary judgment, contending that there were no genuine issues
of material fact and that she was entitled to judgment as a matter
of law.
The matter came before the trial court on 10 December 2001.
After reviewing the pleadings, exhibits, discovery, and after
hearing arguments by counsel, the trial court determined that
plaintiff was entitled to summary judgment and to specific
performance of the separation agreement. To that end, the trial
court entered an order granting plaintiff a 29.5% share of
defendant's divisible railroad retirement benefits. Defendantappeals from the judgment and order of the trial court.
_____________________________________________________
Defendant argues on appeal that the trial court erred in
granting summary judgment in favor of plaintiff and in awarding
plaintiff a portion of his railroad retirement benefits. For the
reasons stated herein, we affirm the order and judgment of the
trial court.
The standard of review on a motion for summary judgment
requires the trial court to review all pleadings, affidavits,
answers to interrogatories and other materials offered in the light
most favorable to the party against whom summary judgment is
sought. See Harrington v. Perry, 103 N.C. App. 376, 378, 406
S.E.2d 1, 2 (1991). The trial court properly grants summary
judgment where there is no genuine issue of material fact to be
decided and either party is entitled to a judgment as a matter of
law. See N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001); Harrington,
103 N.C. App. at 378, 406 S.E.2d at 2.
Defendant argues that the trial court erred in granting
summary judgment in favor of plaintiff and awarding her benefits
under the separation agreement. Defendant contends that the
separation agreement only allows plaintiff to apply for an
individual “divorced spouse annuity” available under the Railroad
Retirement Act, and does not entitle plaintiff to a portion of
defendant's divisible benefits. We disagree.
Parties to a divorce may provide for division of retirement
benefits as part of a separation agreement. See N.C. Gen. Stat. §50-20(d) (2001); Patterson v. Patterson, 137 N.C. App. 653, 666,
529 S.E.2d 484, 491, disc. review denied, 352 N.C. 591, 544 S.E.2d
783 (2000).
Questions relating to the construction and
effect of separation agreements between a
husband and wife are ordinarily determined by
the same rules which govern the interpretation
of contracts generally. Whenever a court is
called upon to interpret a contract its
primary purpose is to ascertain the intention
of the parties at the moment of its execution.
Lane v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624
(1973). Where a contract is unambiguous, its construction is a
matter of law for the court to determine. See Bicycle Transit
Authority v. Bell, 314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985);
Lane, 284 N.C. at 410, 200 S.E.2d at 624. As stated in Lane,
“Intention or meaning in a contract may be
manifested or conveyed either expressly or
impliedly, and it is fundamental that that
which is plainly or necessarily implied in the
language of a contract is as much a part of it
as that which is expressed. If it can be
plainly seen from all the provisions of the
instrument taken together that the obligation
in question was within the contemplation of
the parties when making their contract or is
necessary to carry their intention into
effect, the law will imply the obligation and
enforce it. The policy of the law is to
supply in contracts what is presumed to have
been inadvertently omitted or to have been
deemed perfectly obvious by the parties, the
parties being supposed to have made those
stipulations which as honest, fair, and just
men they ought to have made.” However, “[n]o
meaning, terms, or conditions can be implied
which are inconsistent with the expressed
provisions.”
Lane, 284 N.C. at 410-11, 200 S.E.2d at 624 (quoting 17 Am. Jur. 2d
Contracts § 255 at 649, 652 (1964)) (citations omitted) (alterationin original). We therefore examine the language of the separation
agreement to determine the intent of the parties at the time they
entered the agreement.
Section sixteen of the separation agreement recites that the
parties
stipulated and agreed that Husband has a
substantial retirement account built up under
the Railroad Retirement Act. Wife agrees not
to make any demand on Husband at the present
time, for any portion of this Railroad
Retirement. However, it is stipulated and
agreed by both parties that each of them may
draw Railroad Retirement benefits in
accordance with law when they are eligible to
so draw, and that the other party will not
contest any of said benefits.
Defendant contends that the language concerning “Railroad
Retirement benefits” contained in the separation agreement refers
to a “divorced spouse annuity” available to plaintiff under the
Railroad Retirement Act. A “divorced spouse annuity” is a benefit
available under certain conditions to a former spouse of a railroad
employee. Railroad Retirement Act, 20 C.F.R. §§ 216.60, 216.62
(2002). Such a benefit does not reduce an employee's annuity,
because it is a separate benefit paid from the railroad retirement
trust funds rather than from an employee's account and does not
represent a divisible portion of the employee's annuity. Id. at §§
226.10, 226.30. Defendant argues that the separation agreement
does not award plaintiff any of his divisible retirement benefits,
but merely indicates that he will not contest plaintiff's right to
seek a divorced spouse annuity under the Railroad Retirement Act.
We do not agree with defendant's interpretation of the separationagreement.
A divorced spouse annuity under the Railroad Retirement Act
does not comprise a portion of defendant's annuity and cannot be
considered part of defendant's retirement account. Plaintiff was
eligible for a divorced spouse annuity regardless of, or even in
the complete absence of, specific language in the separation
agreement regarding such an annuity. Given the fact that plaintiff
did not need defendant's consent or aid in seeking a divorced
spouse annuity, defendant's assertion that the term “Railroad
Retirement benefits” contained in the separation agreement referred
only to the divorced spouse annuity would render the entire
paragraph at issue superfluous and without meaning. See Lane, 284
N.C. at 411, 200 S.E.2d at 625 (rejecting meaning, terms, or
implied conditions that are inconsistent with the expressed
provisions of a separation agreement).
Moreover, the parties acknowledged in the separation agreement
that defendant had “a substantial retirement account built up under
the Railroad Retirement Act.” Both parties further agreed that
plaintiff would “not . . . make any demand on [defendant] at the
present time, for any portion of this Railroad Retirement
[account]” but that plaintiff was free to seek such benefits at a
later date. Defendant agreed that he would not contest plaintiff's
right to such benefits when and if she chose to pursue them. Thus,
the language of the separation agreement indicates that the parties
agreed that plaintiff would not seek her share of defendant's
retirement account “at the present time” (i.e., at the date of theseparation agreement) but would wait to seek such benefits until a
later date. Such agreement was particularly reasonable, as the
value of the retirement benefits at issue was not determinable
until defendant's retirement. Defendant did not retire until 29
March 2000, at which time plaintiff sought to receive her portion
of defendant's divisible retirement benefits as contemplated by the
separation agreement.
Defendant's interpretation of the separation agreement would
render the words “at the present time” either illogical or
unnecessary in the context of the surrounding paragraph and overall
separation agreement. If the parties intended plaintiff to receive
no portion of defendant's retirement account, as defendant
contends, the agreement more reasonably might state that “Wife
agrees not to make any demand on Husband for any portion of this
Railroad Retirement” or, alternatively, might omit any reference to
the retirement account altogether. Where a separation agreement is
unambiguous, the appellate courts should not “attempt to search for
the meaning the parties gave to the words regardless of the
understanding which is normally given to them” and “[a] party to a
contract should not be allowed to say he gave a different meaning
to words which are not ambiguous.” Higgins v. Higgins, 321 N.C.
482, 486, 364 S.E.2d 426, 429 (1988) (holding that the phrase “live
continuously separate and apart” contained in a separation
agreement had a definite meaning when viewed objectively). We
conclude the language of the separation agreement reflects the
parties' intention that upon defendant's retirement, the divisibleportion of his retirement benefits would be divided in accordance
with governing law. The trial court therefore did not err in
granting summary judgment to plaintiff.
Defendant further contends that the judgment and order by the
trial court granting plaintiff a portion of defendant's railroad
retirement benefits are in error because “the decision amounted to
equitable distribution which is prohibited under the separation
agreement.” We do not agree.
In their agreement, the parties agreed to release one another
“from any further claim which would or might arise in favor of
either under N.C.G.S., Section 50-20, or any other state or federal
law involving division of property acquired during marriage.”
Plaintiff's action for specific performance is not a further claim
upon the marital assets, however; rather, it arises under the terms
of section sixteen of the separation agreement. A marital
separation agreement is subject to the same rules pertaining to
enforcement as any other contract. See Moore v. Moore, 297 N.C.
14, 16, 252 S.E.2d 735, 737 (1979). Thus, parties to a separation
agreement dividing marital assets may enforce such agreements
through an action for specific performance. See Rose v. Rose, 66
N.C. App. 161, 163, 310 S.E.2d 626, 628 (1984). In her complaint,
plaintiff clearly sought specific performance of section sixteen in
the parties' separation agreement, which the trial court enforced
by entering an order granting plaintiff that portion of the
railroad retirement benefits to which she was entitled under the
separation agreement. The fact that specific performance of theseparation agreement granted plaintiff a portion of the marital
property did not convert plaintiff's action into one for equitable
distribution. We overrule this assignment of error.
Defendant also argues that the trial court erred in
calculating the percentage of benefits to which plaintiff is
entitled. Specifically, defendant contends that plaintiff is not
entitled to receive benefits that arise, in part, from the twelve
years of defendant's employment following his separation from
plaintiff. This argument is without merit.
Under the separation agreement, the parties agreed that
plaintiff was entitled to seek her share of defendant's railroad
retirement benefits “in accordance with law.” Absent more specific
language in the separation agreement to the contrary, the governing
law in North Carolina regarding division of retirement benefits is
section 50-20.1 of the North Carolina General Statutes. Under
section 50-20.1, an award of retirement benefits is
determined using the proportion of time the
marriage existed (up to the date of separation
of the parties), simultaneously with the
employment which earned the vested and
nonvested pension, retirement, or deferred
compensation benefit, to the total amount of
time of employment. The award shall be based
on the vested and nonvested accrued benefit,
as provided by the plan or fund, calculated as
of the date of separation, and shall not
include contributions, years of service, or
compensation which may accrue after the date
of separation. The award shall include gains
and losses on the prorated portion of the
benefit vested at the date of separation.
N.C. Gen. Stat. § 50-20.1(d) (2001). The valuation method
prescribed by section 50-20.1(d), known as the “fixed percentagemethod,” can be expressed as a fraction, the numerator of which “is
the total period of time the marriage existed (up to the date of
separation) simultaneously with the employment which earned the
vested pension or retirement rights[,]” with the denominator being
“the total amount of time the employee spouse is employed in the
job which earned the vested pension or retirement rights.” Lewis
v. Lewis, 83 N.C. App. 438, 442-43, 350 S.E.2d 587, 589 (1986); see
also Seifert v. Seifert, 82 N.C. App. 329, 336-37, 346 S.E.2d 504,
508 (1986) (approving the fixed percentage method for distribution
of retirement benefits), affirmed, 319 N.C. 367, 354 S.E.2d 506
(1987).
In the instant case, the parties married on 18 December 1955
and separated on 24 April 1988. Defendant accrued his railroad
retirement benefits during his employment from 30 September 1969
until his retirement on 29 March 2000. Thus, defendant was
employed for a total of thirty years and six months, during which
time he was married for eighteen years, three months, and twenty-
four days. Utilizing the fixed percentage method, defendant was
married to plaintiff for approximately sixty percent of the time
during which he was accruing retirement benefits. Plaintiff is
entitled to half of these benefits, which equates to thirty
percent. The trial court awarded plaintiff 29.5%, half a
percentage less than what plaintiff was entitled to receive. Thus,
contrary to defendant's argument, the trial court awarded plaintiff
less, and not more than, the retirement benefits which plaintiff
was entitled to receive under the separation agreement andapplicable law. See Gagnon v. Gagnon, 149 N.C. App. 194, 198, 560
S.E.2d 229, 232 (2002) (affirming the trial court's application of
the fixed percentage method in awarding the plaintiff's former wife
twenty-six percent of the plaintiff's retirement benefits). We
overrule this assignment of error.
Defendant argues that the trial court erred in failing to make
findings of fact to support its order. It is not a function of the
trial court, however, to make findings of fact in an order of
summary judgment, as summary judgment presupposes that there are no
triable issues of material fact. See Vulcan Materials Co. v.
Iredell County, 103 N.C. App. 779, 781, 407 S.E.2d 283, 285 (1991).
We overrule this assignment of error.
Defendant further argues that the trial court erred in
awarding plaintiff $4,995.12, the amount calculated by the trial
court as 29.5% of defendant's divisible benefits paid directly to
defendant by the Railroad Retirement Board from 1 April 2000
through 1 April 2002. Under the federal regulations governing
benefit payments by the Railroad Retirement Board to an employee's
spouse or former spouse pursuant to court decree or court-approved
property settlements, such payment “may accrue no earlier than the
later of the date of delivery [to the Board] of a court decree or
property settlement which will be honored under this part, or from
October 1, 1983.” Railroad Retirement Act, 20 C.F.R. § 295.5(c)
(2002). Defendant maintains that, as the Railroad Retirement Board
has not yet received the order of the trial court granting
plaintiff specific performance of the separation agreement, paymentto plaintiff could not have accrued, and the trial court therefore
erred in awarding plaintiff $4,995.12 based on retirement funds
already received by defendant. Defendant's argument is without
merit.
Defendant confuses accrual of payments due to plaintiff by the
Railroad Retirement Board with accrual of monies due plaintiff
under the separation agreement. The applicable federal regulations
direct that payments by the Railroad Retirement Board to a spouse
may not accrue until the Board receives the court decree or
property settlement. Thus, plaintiff may not seek payment of
benefits from the Board until she submits the trial court's
qualified domestic relations order to the Board. The award of the
trial court, however, was not based on monies owed by the Railroad
Retirement Board to plaintiff; it was based on monies owed to
plaintiff under the terms of the separation agreement. In the
separation agreement, defendant acknowledged that he had built a
substantial retirement account during the marriage, and agreed that
he would not contest plaintiff's right to receive that portion of
benefits to which she was entitled under applicable law. Under
applicable law, plaintiff was entitled to receive approximately
thirty percent of the divisible retirement benefits already
received by defendant, which the trial court correctly calculated
as $4,995.12. We therefore overrule this assignment of error.
Finally, defendant argues that the trial court erred in taxing
to him the costs of plaintiff's summary judgment action. Defendant
contends that he never contested plaintiff's right to receive a“divorced spouse annuity” under the Railroad Retirement Act and
should therefore not be taxed with the costs of the action. Given
our determination that the separation agreement referenced
plaintiff's right to receive a portion of defendant's divisible
retirement benefits, which defendant did contest, and not a
“divorced spouse annuity,” we overrule this assignment of error.
In conclusion, we hold that the trial court properly granted
summary judgment in favor of plaintiff. We further hold that the
trial court did not err in entering an order awarding plaintiff
29.5% of defendant's divisible railroad retirement benefits. We
therefore affirm the judgment and order of the trial court.
Affirmed.
Judges TYSON and LEVINSON concur.
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