An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1216


Filed: 15 July 2003


v .                         Halifax County
                            No. 98 CVD 1275

    Appeal by defendant from order entered 3 June 2002 by Judge H. Paul McCoy, Jr. in District Court, Halifax County. Heard in the Court of Appeals 5 June 2003.

    William T. Skinner, IV for plaintiff-appellee.

    Moseley, Elliott and Dickens, L.L.P., by William F. Dickens, Jr., for defendant-appellant.

    McGEE, Judge.

    Geraldine H. Steadman (plaintiff) filed a complaint against Thomas Alan Steadman (defendant) on 23 December 1998 to collect $24,926.47 in past due and accrued alimony payments. Defendant filed an answer on 19 February 1999, denying he owed plaintiff any amount under the support agreement. Plaintiff filed a motion for summary judgment and a motion for judgment on the pleadings dated 21 October 1999. A hearing was held on 1 November 1999 and the trial court denied a motion by defendant to dismiss plaintiff's complaint in an order filed 3 November 1999. Defendant appealed the trial court's order denying defendant's motion to dismiss and this Court dismissed defendant's appeal as interlocutory on 17October 2000.
    Defendant subsequently renewed his motion to dismiss on 1 December 2000. The trial court granted plaintiff's motion for summary judgment in part and denied defendant's renewed motion to dismiss on 5 December 2000. The trial court made findings of fact that included the following:
        6.    On May 5, 1993 . . . the Court entered an order in favor of the plaintiff requiring the defendant to pay her $4,854.35, and indicating that the Court had previously found that the plaintiff was entitled to specific performance of the contract and ordered immediate payment of the amount due.

            . . . .

        8.    [T]he Court entered an order on 20 February, 1997, finding as facts and concluding as a matter of law that the Court could not modify a mutual contract entered into by the parties with the trial court specifically stating "the Court cannot modify a mutual contract entered into between the parties and the aforesaid support agreement between the parties is a valid and enforceable contract which is not subject to modification by the Court." Thus, the Court denied the motion of the defendant to reduce its support payments.

            . . . .

        11.    The partial summary judgment order issued in 92CVD-545 is one in which the Court granted partial summary judgment requiring specific performance of a support agreement between plaintiff and defendant. It is not a case in which a separation agreement or any other type of agreement for support or alimony was incorporated into a judgment of the Court requiring that said payments be made. As a result the judgment in the case in file no. 92CVD-545 granting partial summaryjudgment of a support contract does not fall under the purview of the decision of the North Carolina Supreme Court in Walters v. Walters.

The trial court concluded that there was no genuine issue of material fact relating to whether or not plaintiff was entitled to a money judgment for defendant's past due payments under the separation agreement and that plaintiff was entitled to a money judgment against defendant. Defendant appeals.
            Summary judgment should be rendered only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits disclose no genuine issue of material fact entitling the moving party to judgment as a matter of law. If an issue of material fact exists, then the trial court should not grant summary judgment. The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d 834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (citation omitted).
        "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim."

Id. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).
    Defendant argues that the trial court erred in denying defendant's motion to dismiss and granting plaintiff's motion for summary judgment. Defendant contends that plaintiff is required toseek relief solely through the contempt power of the trial court and may not obtain a monetary judgment against him.
        A separation agreement adopted by the court and incorporated into a consent judgment ordering compliance therewith merges into the court order; the court's decree supersedes the separation agreement, which then ceases to exist as an independently enforceable contract. On the other hand, a separation agreement merely approved by the court but not incorporated into or ordered to be performed by the consent judgment is not a court order, does not merge into the consent judgment, and remains a separately enforceable contract between the parties.

Marks v. Marks, 316 N.C. 447, 453, 342 S.E.2d 859, 863 (1986) (citations omitted). "[C]ourt 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." Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). Parties to a consent judgment must pursue this method of enforcement and may not proceed in an independent action in contract. Id.; Doub v. Doub, 313 N.C. 169, 170-71, 326 S.E.2d 259, 260 (1985). By not incorporating their separation agreement into a consent judgment, the parties preserve their agreement as a contract and provide for its enforcement and modification under traditional contract principles. Walters, 307 N.C. at 386, 298 S.E.2d at 342.
    Defendant contends that the support agreement was incorporated into a judgment of the trial court and was only enforceable by the trial court's contempt powers and not through a contractual remedy. After a careful examination of the record, this Court finds noevidence that the separation agreement entered into by plaintiff and defendant was adopted by the trial court and incorporated into a court ordered judgment. The record does not contain a copy of a consent judgment or other order that superseded the separation agreement. An appellant bears the burden of seeing that the record on appeal is properly settled and filed with this Court. McLeod v. Faust, 92 N.C. App. 370, 371, 374 S.E.2d 417, 418 (1988). This Court is bound by the contents of the record on appeal and our decision must be based on the evidence contained therein. N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 543, 553 S.E.2d 420, 423 (2001). "Where the record is silent upon a particular point, it will be presumed that the trial court acted correctly in performing [its] judicial acts and duties." State v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982). Absent any evidence in the record that the separation agreement was adopted and incorporated into a court ordered judgment, plaintiff is entitled to summary judgment.
    We note that the trial court's order in 92-CVD-545, as contained in the record, concluded as a matter of law that "[t]he Plaintiff is entitled to partial Summary Judgment on the issue of incorporating the aforesaid Support Agreement into the Judgment of this Court and ordering specific performance of the same." The order also stated that
        Summary Judgment is entered against the Defendant on the issue of incorporation of the aforesaid Support Agreement between the parties into the Judgment of this Court and the Court orders that the terms and conditions of the same, a copy of which is attached tothis Judgment, are to be specifically performed by the Defendant.

The trial court's order did not adopt and incorporate the support agreement into a court ordered judgment as defendant contends. The order of the trial court in 92-CVD_545 found that the only disputed issue was whether or not the trial court should grant specific performance. Plaintiff was awarded specific enforcement of the agreement in that order, a remedy only available if the separation agreement continued to exist as a contract by not being adopted and incorporated into a court ordered judgment. Since plaintiff was awarded the contractual remedy of specific performance, the trial court's order in 92-CVD-545 does not evidence the incorporation of the separation agreement into a court ordered judgment and does not present an issue of material fact.
    The record contains no evidence that demonstrates a genuine issue of material fact regarding the incorporation of the support agreement into a judgment of the trial court. As we are bound by the contents of the record on appeal, we hold that plaintiff was entitled to seek enforcement of the agreement only through traditional contract principles and was entitled to summary judgment on the issue. Since we hold that plaintiff was entitled to summary judgment, we do not need to address defendant's remaining argument regarding the denial of his motion to dismiss.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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