GWENDOLYN B. ELDER,
Plaintiff
v
.
Moore County
No. 99 CVD 985
LOUIS C. ELDER,
Defendant
Thigpen & Jenkins, L.L.P., by Arthur A. Donadio, for
plaintiff-appellee.
Webb & Graves, P.L.L.C., by Jerry D. Rhoades, Jr., for
defendant-appellant.
CALABRIA, Judge.
Gwendolyn B. Elder (“plaintiff”) and Louis C. Elder
(“defendant”) were married on 13 September 1980 and separated on 30
August 1999. Following a claim for equitable distribution, on 17
December 2001, the parties entered into a consent order providing:
(1) Defendant will pay $75,000 to Plaintiff
within 30 days* in full and final satisfaction
of all E.D. [Equitable Distribution] claims.
(2) Plaintiff will provide QC [Quit Claim]
deeds to Defendant for marital home at 133
Forest Hills Dr. and lot at Deercroft.
(3) All other personal property, pensions etc
will remain property of the person currently
in possession.
*30 day period starts running when Quit Claim
deeds are presented to Defendant for filing.
Thereafter, on 17 January 2002, the court signed a typewritten
recapitulation of the order. The same day, plaintiff certified she
delivered the quitclaim deeds to defendant. On 20 February 2002,
defendant filed a Rule 60(b) motion. On 7 March 2002, plaintiff
filed a motion for a temporary injunction asking the court to enter
an order prohibiting defendant from conveying the real property
because although she divested herself of her interest in the
property, he had not complied with the order by paying her
$75,000.00. Following a 26 August 2002 hearing, the court found
the following facts:
2. The terms of [the 17 December 2001
memorandum of consent order] required
Defendant to pay Plaintiff the sum of
$75,000.00 (Seventy-Five Thousand Dollars)
within 30 days of Plaintiff's delivery to
Defendant of certain Quitclaim deeds.
3. Plaintiff, Defendant and parties' counsel
were questioned by the undersigned Judge in
open court to determine if each understood the
terms of the memorandum. Each indicated
understanding and acceptance of the terms of
the Memorandum.
4. Thereafter, once the Plaintiff had
delivered the quitclaim deeds to Defendant,
Defendant attempted to tender performance by
means of an IRA “rollover”.
5. Plaintiff rejected said tender by Defendant
on grounds that $75,000.00 rolled into an IRA
in Plaintiff's name is not the same as
$75,000.00 as called for in the Memorandum.
Plaintiff did not bargain for a 10% tax
penalty should she attempt to use proceeds of
the settlement.
6. Defendant testified that he always intended
to make the transfer of funds from Defendant's
IRA into an[] IRA to be established by
Plaintiff.
7. Defendant's counsel drafted the Memorandum
of Judgment/Order.
8. The Memorandum of Judgment/Order is
unambiguous on its face.
Based on these findings of fact, the court concluded that defendant
had failed to meet his burden of proof and was not entitled to
relief from judgment under Rule 60(b). Further, the court granted
plaintiff's motion preventing defendant from disposing of or
encumbering the real property. From this order, defendant appeals.
Defendant asserts the trial court abused its discretion by
denying his Rule 60(b) motion on the grounds that there was no
meeting of the minds since defendant always intended to pay
plaintiff the $75,000.00 by “rolling over” the money from his IRA
to hers and not by a cash payment. Defendant also asserts the
trial court erred by ruling on the motion without considering the
testimony of defendant.
First, we address defendant's argument that there was no
meeting of the minds with regards to the payment terms. The
consent agreement reads “Defendant will pay $75,000.00 to
Plaintiff. . . .” The contract is silent as to the medium of
payment. However, silence as to a material term may not negate
meeting of the minds and usurp formation of the contract. Instead,
where parties are silent as to a material term the missing term
may be either implied from surrounding
circumstances or supplied by a court using a
gap-filler. The missing term may be implied
from external sources, including standard
terms, trade or local usages, a course of
dealing between the parties prior to the
agreement, and a course of performance after
it. . . . A gap-filler, on the other hand,
is a term courts supply either because the
court thinks that the parties would have
agreed on the term if it had been brought to
their attention or because it is 'a term which
comports with community standards of fairness
and policy.'
J. Perillo, Calamari and Perillo on Contracts § 2.9 (5th ed. 2003)
(citation omitted). Accordingly, defendant's argument, that he
always intended to pay plaintiff the $75,000.00 by way of an IRA
rollover does not, as he asserts, negate the meeting of the minds
for formation of their contract.
Nevertheless, defendant argues the Supreme Court recently held
that “a court cannot compel compliance with terms not agreed upon
or expressed by the parties in the settlement agreement.” Chappell
v. Roth, 353 N.C. 690, 692, 548 S.E.2d 499, 500 (2001). However,
in Chappell the issue presented was not that the agreement was
silent as to a material term; rather, the parties had agreed
defendant would pay plaintiff $20,000.00, and plaintiff would
voluntarily dismiss her suit, and the parties would execute a “full
and complete release, mutually agreeable to both parties.” Id.,
353 N.C. at 691, 548 S.E.2d at 500. However, the parties were
unable to agree on a release. The Supreme Court held the agreement
could not be enforced by our courts because a material term to the
contract - that the parties agree on a release - had not been met.
Id., 353 N.C. at 693, 548 S.E.2d at 500. We find Chappell
distinguishable from the case at bar. The contract in Chappell was
not silent regarding a term; therefore, the court could not imply
the missing term. Rather, the contract provided the parties would
later agree to the term, and when they were unable to do so, the
court could not imply the term. Unlike in Chappell, in the case at
bar it is possible for the court to utilize the general rules of
implying or gap-filling silent material terms. Accordingly, wefind no merit to defendant's assertion that, because he believed he
could pay plaintiff the $75,000.00 through an IRA rollover and
plaintiff anticipated a monetary payment, there was no meeting of
the minds.
Defendant next asserts the trial court erred in not accepting
parol evidence of the intended payment terms. We note the general
rule with regard to medium of payment is that “[u]nless the
contract indicates otherwise, payment is to be made in legal tender
_ greenbacks.” J. Perillo, Calamari and Perillo on Contracts §
21.17 (5th ed. 2003); accord 60 Am. Jur.2d, Payment, § 21, p. 726
(payment “must be in money, unless the parties agree otherwise”).
In the case at bar, the consent agreement reads “Defendant will pay
$75,000.00 to Plaintiff. . . .” Since the contract does not
indicate the parties agreed to a non-monetary medium of payment,
the default presumption is that payment must be made in money.
Generally, our courts will accept parol evidence where the
contract is silent as to the medium of payment. See Mozingo v.
Bank, 31 N.C. App. 157, 162, 229 S.E.2d 57, 61 (1976) (“[t]he
general rule is that parol evidence is admissible to show the
agreed upon method of payment on a note”); Blalock v. Clark, 137
N.C. 140, 142, 49 S.E. 88, 88 (1904) (permitting parol evidence
regarding the custom for payment of large lots of cotton was by
check and not by cash); Lett v. Markham, 266 N.C. 318, 319, 145
S.E.2d 907, 908 (1966) (stating the general rule that “'[i]f the
contract is ambiguous or silent on the medium of payment, parol
evidence with respect thereto is admissible'” (quoting 40 Am. Jur.,Payment, § 294, p. 902) but holding that a contract requiring
payment of $3,500.00 “called for payment in cash” and remanding for
a factual determination of defendant's alleged cancellation of a
debt owed him by plaintiff had sufficiently established his defense
of payment); but see Kidd v. Early, 289 N.C. 343, 359, 222 S.E.2d
392, 404 (1976) (applying the general rule “that when an option to
purchase real estate neither specifies the method of payment nor
provides that terms are to be fixed by a later agreement, the law
implies that the purchase price will be paid in cash”). Defendant
argues the trial court improperly declined to consider parol
evidence, his testimony that he always intended to pay plaintiff
with an IRA rollover. We disagree. While in some cases our courts
have permitted parol evidence tending to show the trade uses or
common practices in a given field of business, no such evidence is
presented in the case at bar. Moreover, even had the trial court
erred, the court permitted defendant to testify to preserve the
record on appeal. The parol evidence consists only of defendant's
self-serving statement that he always intended to pay plaintiff
through the IRA. Defendant's statement, standing alone, does not
demonstrate an agreement between the parties or any reason to vary
from the general principal that money is the default medium of
payment.
Accordingly, we hold defendant's belief, that he could pay
plaintiff $75,000.00 through a rollover, does not negate the
meeting of the minds, and the contract is valid. Since the
contract is silent on the medium of payment, this Court musttherefore imply the term, and without a reason to vary the general
rule, we conclude payment shall be in money. Therefore, defendant
owes plaintiff $75,000.00 and, since another method was not agreed
upon, this payment must be monetary.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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