An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-954


Filed: 15 April 2003


     v .                              Durham County
                                     No. 01 CVD 01871

    Appeal by plaintiff from orders entered 19 and 29 April 2002 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 19 February 2003.

    Wilfred F. Drake, P.C., for plaintiff appellant.

    Clayton, Myrick, McClanahan & Coulter, PLLC, by Frederick C. Schmidt, for defendant appellant.

    McCULLOUGH, Judge.

    Plaintiff Beverly Elaine Jeffries was married to Daryl Lynn Jeffries on 21 June 1980. Two children were born of this marriage: Amy Nicole Jeffries on 5 September 1981 and Apryl Megan Lynn Jeffries on 17 April 1985. The marriage between plaintiff and Daryl Jeffries did not last and the two entered into a contract of separation and property settlement agreement on 17 February 1993. They were officially divorced on 6 June 1997.
    Certain provisions of this property settlement are the focus of this appeal. Under the property settlement, Daryl Jeffries was granted exclusive possession of the marital home and responsibilityfor the two mortgages. Plaintiff was granted all the furniture that was in the house at the time of the agreement “except for the living room furnishings which will be the sole property of Husband.” Plaintiff also gave up any rights to her husband's retirement accounts. Both parties waived any alimony or spousal support.
    As to the children, the agreement set forth the following:
            23. SUPPORT OF THE MINOR CHILDREN. Husband agrees to pay to Wife the sum of FIFTEEN HUNDRED AND 00/100 DOLLARS ($1,500.00) per month for the support and maintenance of the minor children. However, if household expenses decrease due to Wife living with someone or marrying, child support automatically decreases to ONE THOUSAND AND 00/100 DOLLARS ($1,000.00) per month. Said sum shall be paid until the minor child, APRYL MEGAN LYNN JEFFRIES, reaches the age of eighteen (18) years, marries, becomes self- supporting or otherwise emancipated, dies, or upon death of Wife. Said child support obligations shall be binding upon Husband's estate should Husband die before such child support obligation cease.

    On 6 February 2000, Daryl Jeffries died intestate as a result of an automobile collision leaving the daughters as his only heirs. His parents became co-administrators of his estate. At the time of Daryl's death, plaintiff and daughter Apryl lived together while Daryl and Amy, who turned 18 on 5 September 1999, lived with his parents. Plaintiff was paying $775.00 a month in rent at her then current residence.
    By the end of February of 2000, Amy moved into the former marital home. Plaintiff and Apryl moved into the former marital home not long after, and plaintiff's grandniece, who was not quitea year old, joined them. When plaintiff moved, she sold most of the furniture she then owned. Once in the former marital home, she sold the washer and dryer units in that house and used her own. On 7 March 2000, plaintiff received a payment of $15,726.18 from Daryl's IRA.
    Defendant, Estate of Daryl Lynn Jeffries, assumed payment of Daryl's debts. First, it paid the mortgages on the former marital home ($1,200.00 monthly), property taxes and insurance (approximately $4,461.44). As the child support in the 17 February 1993 contract specifically made defendant responsible, the Estate paid $1,500.00 a month to plaintiff through January of 2001. During January, February, and March of 2001, defendant paid plaintiff $1,000.00 a month. Plaintiff apparently accepted these payments. While living in the former marital residence (13 months), plaintiff paid nothing towards the mortgages, insurance or taxes. She did pay some of the utilities. The parents of Daryl Jeffries paid some of the bills out of their own pocket because the estate had little money. Notably, plaintiff ceased to work in April of 2000 after Daryl passed away. Further, plaintiff did not pay anything towards Amy's needs during this time.
    On or about 16 March 2001, plaintiff, Apryl and the grandniece moved out of the former marital home. When they left, plaintiff removed certain items of personal property from the premises, including a stereo system, bedroom furniture, the washer and dryer that she brought with her, kitchen utensils and a fan. Thisproperty had a total approximate value of $4,020.00. Amy continued to live in the home.
    Once plaintiff was out of the former marital home, defendant resumed making the $1,500.00 a month payment to her for the April through September 2001 time period.
    Plaintiff filed a complaint on 17 April 2001 alleging that defendant owed her $1,500.00 under the 1993 property settlement agreement. This amount was equal to the three-month $500.00 deduction in Jan/Feb/March 2001.
    Defendant answered on 25 June 2001. In its answer, defendant defended its reduction based on the support provisions of the 1993 agreement. According to defendant, plaintiff was “living with someone” within the meaning of the agreement that allowed a decrease in her household bills, namely Amy. In addition, defendant alleged that plaintiff also spent several nights with boyfriends and/or male companions, either at their places of residence or in the former marital home, which allowed plaintiff to decrease her household expenses. Further, defendant counterclaimed that: (1) it was no longer liable for $750.00 child support because Amy had turned 18 and it should get some money back, and (2) plaintiff took property from the former marital residence that she was not entitled to take.
    Plaintiff filed her answer denying the counterclaims on 11 July 2001.
    On 2 October 2001, defendant amended its counterclaims to include a request for an offset in the amount of $15,726.18. Thiswas based upon an arbitration that took place between the parties on 14 September 2001. As stated earlier, plaintiff had received a check for the above amount from Daryl's retirement account on 7 March 2000, of which she relinquished all rights in the 1993 agreement. This offset, according to defendant, was to be pro rata per month. Defendant also added that it was further entitled to an offset for the rest of the months (other than Jan/Feb/March of 2001) that plaintiff lived in the former marital home in the amount of $500.00 for each month during the February 2000 - December 2000 time frame.
    In October of 2001, defendant tendered $334.65 to plaintiff, which she declined. Plaintiff amended her complaint to reflect that the full amount had not been paid on 23 October 2001. The same thing happened in November and December of that year. Apparently, no more support checks were issued. On 30 October 2001, plaintiff responded to defendant's counterclaims of 2 October. Here, plaintiff agreed to a reduction of $15,726.18, but claims that there was an understanding that this would be essentially rear-end loaded rather than pro rata. This would result in the child support payment terminating ten months prior to 17 April 2003, roughly June of 2002.
    Finally, on 10 January 2002, defendant filed an amended answer, claiming accord and satisfaction and estoppel. Defendant alleged plaintiff admitted that the child support obligation was reduced by $15,726.18. Thus, defendant sent plaintiff a check in October of 2001 for the “full amount of child support due.” Plaintiff refused this check. The same happened in November and December of 2001.
    On 2 April 2002, this matter was heard before the Honorable Marcia H. Morey at a Civil Session of Durham County District Court. In its order of 19 April 2002, the trial court entered findings of fact while noting that, although plaintiff testified that her expenses actually increased while she lived in the former marital residence, this was untenable. The order held that child support under paragraph 23 of the 1993 agreement was not reduced when Amy reached age 18, plaintiff wrongfully removed furniture belonging to the estate when she vacated the former marital home, the IRA proceeds belonged to the estate, and plaintiff's household expenses “did or should have decreased” when she lived in the former marital home. Thus (1) plaintiff's claim for $1,500.00 from Jan/Feb/March of 2001 was denied; (2) for every month that plaintiff lived in the former marital home and was paid $1,500.00 in child support, defendant was to receive a $500.00 offset ($500.00 for ten months equals $5,000.00); (3) defendant's requested reduction based on Amy turning 18 was denied; (4) plaintiff was entitled to the full $1,500.00 after leaving the former marital home; (5) defendant is to receive an offset in the amount of $15,726.18 for the IRA; and (6) defendant is to receive an offset in the amount of $4,020.00 for the furniture wrongfully taken. The trial court awarded plaintiff $27,855.00 minus $24,746.18 (offset to defendant) equaling $3,108.82 due from defendant.     On 29 April 2002, the trial court awarded defendant partial attorney's fees in the amount of $2,936.25 based on paragraph 40 of the 1993 agreement. This amount was subtracted from the amount defendant owed plaintiff according to the earlier order, leaving defendant owing plaintiff $172.57.
    Plaintiff appeals from both orders.

    Plaintiff first argues that the trial court erred by reducing the child support from $1,500.00 to $1,000.00 under paragraph 23 of the 1993 agreement because she was not living with anyone within the meaning of the agreement.
    Under the agreement in paragraph 23, plaintiff was to receive $1,500.00 a month in child support. Included in that paragraph was the following proviso: “However, if household expenses decrease due to Wife living with someone or marrying, child support automatically decreases to ONE THOUSAND AND 00/100 DOLLARS ($1,000.00) per month.” Plaintiff maintains that the intent behind this portion of the agreement was that if she were to remarry or begin cohabitating with a man and this fact decreased her bills, then the child support could be reduced. She argues that the agreement did not contemplate nor include the current facts as a basis to reduce the amount. We disagree.
            The trial court determines as a matter of law the construction of a clear and unambiguous contract. Hagler [v. Hagler], 319 N.C. [287] at 294, 354 S.E.2d [228] at 234 [(1987)]. “'. . . When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, orthe consideration of disputed fact, the intention of the parties is a question of law . . ..'” Bicycle Transit Authority v. Bell, 314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985) (quoting Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)). In construing a separation agreement, the same rules used in contract interpretation generally apply, thus, “[w]here the terms of a separation agreement are plain and explicit, the court will determine the legal effect and enforce it as written by the parties.” Blount [v. Blount], 72 N.C. App. [193] at 195, 323 S.E.2d [738] at 740 [(1984)].

            “It is a well-settled principle of legal construction that '[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.'” Hagler, 319 N.C. at 294, 354 S.E.2d at 234 (quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)).

                “Whether . . . the language of a contract is ambiguous or unambiguous is a question for the court to determine. . . .”

            Piedmont Bank & Trust Co. v. Stevenson, 79 N.C. App. 236, 240, 339 S.E.2d 49, 52 (1986). In making this determination, “words are to be given their usual and ordinary meaning and all the terms of the agreement are to be reconciled if possible . . ..” Id.

        Hartman v. Hartman, 80 N.C. App. 452, 455, 343 S.E.2d 11, 13 (1986).

Anderson v. Anderson, 145 N.C. App. 453, 457-58, 550 S.E.2d 266, 269-70 (2001).
    The plain language of the agreement does not state live with “a man” but live with “someone.” “Someone” is a much broader term than “man.” It does not appear to be ambiguous. It was a specificdrafting choice to use that term, and the parties agreed on it. Thus, the trial court's interpretation of the agreement recognizing that plaintiff's living with her emancipated daughter was sufficient to trigger the reduction clause in the 1993 agreement was correct.
    To fully trigger the reduction, not only did plaintiff have to be living with someone, but her household expenses had to (1) decrease (2) due to her living with that someone.
    While plaintiff testified that her expenses had actually increased due to her moving into the former marital residence, the trial court found many of the expenses of plaintiff to be “irrelevant to the issue of whether Plaintiff's household expenses had decreased while living in the estate home.” We believe there to be adequate evidence in the record to allow the trial court to conclude that plaintiff's household expenses had decreased. For instance, plaintiff lived rent free in the former marital residence and failed to take necessary steps to decrease the expenses of the former marital home (i.e., the phone bill). Further, we note that the trial judge, as the fact-finder, weighs the credibility of the witnesses. See Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980). Those such findings are supported by the evidence.
    Defendant points out that plaintiff would not have been able to move into the former marital residence but for the passing of the decedent, and thus would not have lived with her emancipated daughter, Amy Jeffries. By operation of statute, the house belonged to the heirs of Daryl Jeffries: Amy and Apryl. See N.C.Gen. Stat. § 28A-15-2(b) (2001); see also Swindell v. Lewis, 82 N.C. App. 423, 426, 346 S.E.2d 237, 239 (1986). Defendant paid the mortgage and accompanying expenses associated with the former marital residence. Therefore, plaintiff's expense did decrease due to her living with Amy, and the reduction was indeed triggered.
    Based on the clear and unambiguous language of the 1993 agreement, we hold that the trial court ruled properly. This assignment of error is overruled.
    Next, plaintiff argues that the trial court erred by granting defendant an offset in the amount of $4,020.00 for the household furnishings taken by her from the former marital home because the 1993 agreement granted her all things in the house other than the living room furnishings. Plaintiff maintains she had no intent to abandon the items as claimed by defendant. Plaintiff does concede, however, that certain kitchen items (pots and pans) did belong to the estate, and were properly included in the offset ($80.00).
    Our standard of review of a non-jury trial is “whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.” Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). “If the court's factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary.” Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341, disc. review denied, 353 N.C. 526, 549 S.E.2d 218 (2001).    In this case, plaintiff was granted possession of all household furnishings, minus the living room furniture, in the 1993 agreement. For the next seven or eight years, those items remained in the former marital residence.
    “'To constitute an abandonment or renunciation of [her personal property], there must be acts and conduct positive, unequivocal, and inconsistent with [her] claim of title. Nor will mere lapse of time or other delay in asserting [her] claim, unaccompanied by acts clearly inconsistent with [her] right, amount to a waiver or abandonment.'” Williams v. Williams, 72 N.C. App. 184, 187-88, 323 S.E.2d 463, 466 (1984) (quoting Banks v. Banks, 77 N.C. 186, 187 (1877)); see also State v. West, 293 N.C. 18, 29-30, 235 S.E.2d 150, 156-57 (1977).
    Defendant claims that there is no proof of what items were in the house at the time of separation. The implication is that plaintiff sold off all her possessions prior to moving back into the former marital residence in furtherance of her plan to profit from her ex-husband's untimely death.
    The onus is upon defendant, however, to show that plaintiff abandoned the furniture. The testimony favorable to plaintiff shows that decedent allowed plaintiff to retain title while leaving the items in the former marital house. Further, plaintiff often visited the home and presumably used the items in question. Yet the record does reveal positive action on the part of plaintiff sufficient to show that she abandoned the furnishings so as to support the trial court's findings. During those seven to eightyears that passed, plaintiff bought totally new furniture to use in her new residence instead of claiming the furnishings given to her by the agreement. Such action, we feel, is inconsistent with her claim to the furnishings. These actions coupled with the long lapse of time amounts to a waiver or abandonment of her claim to the furnishings. Therefore, the trial court was correct to award defendant an offset for the kitchen table and chairs, patio furniture and filing cabinet in the amount of $1,150.00, and the washer and dryer in the amount of $500.00.
    However, resolution of the stereo and the bedroom furniture offset is not as simple. Plaintiff points out that Apryl took possession of the stereo from the former marital residence. Plaintiff contends that Apryl, as heir to the decedent, was entitled to do so, and thus defendant has no right to an offset. As to the bedroom furniture, including what was noted as Amy's headboard, footboard, dresser, mirror, armoire and nightstand, plaintiff points out that testimony showed that it belonged to Amy. Thus, plaintiff contends the trial court erred by giving defendant an offset based on these items because they never belonged to defendant.
    Defendant argues that N.C. Gen. Stat. § 28A-15-2(a) (2001) applies and operates to give defendant at least temporary title to all the personal property. See Wright v. Smith, 151 N.C. App. 121, 123, 564 S.E.2d 613, 615 (2002). N.C. Gen. Stat. § 28A-15-2(a) (2001) provides:            (a) Personal Property. -- Subsequent to the death of the decedent and prior to the appointment and qualification of the personal representative or collector, the title and the right of possession of personal property of the decedent is vested in his heirs; but upon the appointment and qualification of the personal representative or collector, the heirs shall be divested of such title and right of possession which shall be vested in the personal representative or collector relating back to the time of the decedent's death for purposes of administering the estate of the decedent. But, if in the opinion of the personal representative, his possession, custody and control of any item of personal property is not necessary for purposes of administration, such possession, custody and control may be left with or surrendered to the heir of devisee presumptively entitled thereto.

    We agree with defendant in regard to the stereo. The parents of the decedent were duly appointed co-administrators of his estate. By operation of the above statute, personal property of the decedent was titled in defendant. Testimony showed that the stereo did indeed belong to decedent. It does not appear in the record that a decision had been made by defendant to relinquish title in accordance with the statute, thus title remained with defendant, and it was properly granted an offset.
    However, as to Amy's bedroom furniture, testimony showed that the bedroom furniture on the list belonged to Amy outright, and not the estate. Amy testified that they were Christmas gifts from her mother and father. Thus, these items were not the personal property of decedent, and the statute had no effect on them. They were, for all intents and purposes, titled to Amy. In this, plaintiff iscorrect that it was improper to grant defendant an offset for the full $1,500.00 (this figure included a queen mattress and rail which belonged to decedent and all of Amy's bedroom furniture.). Thus, this offset must be revalued consistent with this opinion.
    Further, testimony concerning the fan showed that at no point did it ever belong to decedent. This offset was also improper.
    This brings the proper offset total to $2,400.00 ($4,020.00, minus $1,500.00, minus $80, minus $40), plus whatever value is placed on the queen mattress and rails. This assignment of error is sustained in part, as to the kitchen items, bedroom furniture, and fan, and overruled as to the remainder.
    Finally, plaintiff contends that defendant should not receive any attorney fees. As this Court has sustained the trial court's rulings and affirmed that defendant, even after minor changes, is the prevailing party, the trial court's award of attorney's fees, permitted pursuant to paragraph 40 of the 1993 agreement, is also affirmed.
    Affirmed in part; reversed in part.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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