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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
SUE ALLISON BROADWELL ROBERTS, Plaintiff, v. RONALD WAYNE
Filed: 20 September 2005
1. Marriage_premarital agreement_outstanding indebtedness on real property_loans
not secured by that property_not included
The phrase outstanding indebtedness on real property in a pre-marital agreement
referred to unpaid debt supported by or attached to the property. The phrase does not include
debts, such as personal loans, that are not secured by the property, regardless of whether the
proceeds were applied toward purchase of the property.
2. Marriage_premarital agreement_property purchased in both names_marital
Language in a premarital agreement dealing with retention of separate property and the
marital property status of property purchased in both names, regardless of the source of funds,
was not ambiguous when read with language in the introduction stating that each party would
retain ownership of separate property except as otherwise provided.
3. Marriage_premarital property_gift to marriage_not relevant
The question of whether a down payment on real property was intended as a gift to the
marriage would be relevant for equitable distribution, but was not for interpretation of a
4. Appeal and Error_preservation of issues_attorney's affidavit_failure to object at
The admissibility of an affidavit from an attorney was not considered on appeal of a
premarital agreement case where defendant did not object at trial.
5. Contracts_premarital agreement_specific performance_other parallel provisions
The question of whether the trial court's findings in a premarital agreement case
supported a specific performance paragraph was not reached where that paragraph reiterated the
provisions of other paragraphs. The practical result would be the same if the specific
performance paragraph was deleted.
6. Marriage_premarital agreement_contribution to joint account_language of
The trial court erred by granting summary judgment for defendant on a claim for breach
of premarital agreement terms concerning contributions to a joint account until an indebtedness
on a property was satisfied. The language of the agreement was plain, the amount to be
contributed was plainly stated and no further agreement was necessary, and defendant cited no
authority that would allow a party to evade compliance with a valid contract on the grounds that
the parties no longer had a relationship or that he no longer agreed with the contract.
7. Marriage_premarital agreement_attorney fees
An award of attorney fees under a premarital agreement was remanded where the
agreement provided recovery of attorney fees for the prevailing party, but a part of the lower
court's summary judgment was reversed.
Appeal by plaintiff from judgment and order entered 29 April
2004, by defendant from judgment and order entered 2 July 2004, and
by plaintiff and defendant from order entered 28 September 2004,
all orders entered by Judge Anderson D. Cromer in Guilford County
Superior Court. Heard in the Court of Appeals 23 August 2005.
William G. Barbour, and Floyd and Jacobs, L.L.P., by Constance
F. Jacobs, for plaintiff.
Mercedes O. Chut for defendant.
This appeal arises from the interpretation of a premarital
agreement executed by plaintiff (Sue Roberts) and defendant (Ronald
Roberts). We affirm in part and reverse and remand in part.
The relevant facts are largely undisputed and may be
summarized as follows: The parties were married 9 September 2000
and separated 5 November 2002. Shortly before their marriage,
plaintiff and defendant executed a premarital agreement, which
included provisions defining separate and marital property,
establishing a joint checking account, and addressing disposition
of property in the event that they separated. On 1 October 2002
plaintiff filed a claim against defendant, generally seeking
enforcement of the premarital agreement. Plaintiff subsequently
filed an amended complaint seeking damages for breach of the
premarital agreement's terms regarding the parties' joint checkingaccount, and for anticipatory breach of these terms. She also
sought a declaratory judgment declaring the parties' rights under
the agreement's provisions for disposition of marital real estate
upon separation of the parties. On 4 March 2004 plaintiff filed a
motion for summary judgment on all her claims. The trial court
entered an order on 29 April 2004, granting summary judgment for
defendant on plaintiff's claim arising from the parties' joint
checking account, from which order plaintiff appealed. On 2 July
2004 the trial court granted summary judgment for plaintiff on her
claims for breach of the real estate buyout provisions of the
premarital agreement. Defendant has appealed this order. In
addition, both parties have appealed the trial court's order of 28
September 2004, which awarded plaintiff a total of $19,007.00 in
Standard of Review
The parties appeal from orders granting summary judgment.
Under N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003), summary judgment
is proper if 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. 'An issue is genuine if it may be maintained by
substantial evidence. An issue is material if the facts as alleged
would constitute a legal defense, would affect the result of the
action or would prevent the party against whom it is resolved from
prevailing in the action.' Development Corp. v. James, 300 N.C.631, 637, 268 S.E.2d 205, 209 (1980) (citing Koontz v. City of
Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972)).
The party moving for summary judgment ultimately has the
burden of establishing the lack of any triable issue of fact[,]
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329
S.E.2d 350, 353 (1985), and evidence presented by the parties must
be viewed in the light most favorable to the non-movant.
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998) (citation omitted). However, when a summary
judgment motion is supported as provided in this rule, an adverse
party . . . must set forth specific facts showing that there is a
genuine issue for trial. N.C. Gen. Stat. § 1A-1, Rule 56(e)
Our Court's standard of review on appeal from summary
judgment requires a two-part analysis. Summary judgment is
appropriate if (1) the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material
fact; and (2) the moving party is entitled to judgment as a matter
of law. Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d
660, 664 (2000).
 In the case sub judice, summary judgment was entered on
claims arising from a premarital agreement, defined by N.C. Gen.
Stat. § 52B-2 (2003) as an agreement between prospective spouses
made in contemplation of marriage and to be effective upon
marriage. A valid premarital agreement must be in writing andsigned by both parties, N.C. Gen. Stat. § 52B-3 (2003), and
becomes effective upon marriage. N.C. Gen. Stat. § 52B-5 (2003).
The principles of construction applicable to contracts also apply
to premarital agreements[.] Harllee v. Harllee, 151 N.C. App. 40,
46, 565 S.E.2d 678, 682 (2002) (citing Howell v. Landry, 96 N.C.
App. 516, 525, 386 S.E.2d 610, 615 (1989)) (other citation
omitted). Thus, absent fraud or oppression . . . parties to a
contract have an affirmative duty to read and understand a written
contract before signing it. Park v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 159 N.C. App. 120, 126, 582 S.E.2d 375, 380 (2003).
And, when interpreting contract language, the presumption is that
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. Stewart v. Stewart, 141 N.C. App. 236, 240, 541 S.E.2d
209, 212 (2000) (discussing Hartford Accident & Indem. Co. v. Hood,
226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946)).
Defendant's Appeal _ Real Estate Buyout Provision
Defendant appeals the trial court's order of summary judgment
for plaintiff on claims based on the premarital agreement's real
estate buyout provision. Defendant contends that the evidence
raises genuine issues of material fact or, in the alternative, that
he is entitled to summary judgment. We disagree.
The premarital agreement includes, in pertinent part, the
. . . .
4. RETENTION OF SEPARATE PROPERTY. Except as
otherwise provided herein, each party shallduring his or her lifetime:
A. Retain the sole and separate ownership of
his or her respective separate property. . .
5. DEFINITION OF SEPARATE PROPERTY. . . . [T]he
term 'separate property' shall mean all of a
party's right, title, claim and interest, . .
. to all property, real or personal, . . .
which was owned by each party at the time of
their marriage. . . .
. . . .
10. JOINTLY HELD PROPERTY. . . . Joint property
shall include all assets held in both names[.]
. . . Each party shall have an undivided
one-half interest in jointly held property no
matter by whom purchased or the nature of
funds used in making the purchase.
11. REAL PROPERTY. Real property purchased in Ron
and Sue's joint names shall be marital
property regardless of the source of the
funds. . . . In the event of a separation, . .
. either party may buy the other out for one
half of the fair market value of the property
less 6% (to reflect an imputed realtor's fee),
less one half of the outstanding indebtedness
on said property. . . .
The record evidence establishes the following undisputed
facts: In June 2001 the parties purchased real property on Hobbs
Road, in Greensboro, North Carolina (the Hobbs Road property),
which is jointly owned and titled in the names of both parties.
The Hobbs Road property purchase price of $250,000 was paid from
two sources of funds. Defendant obtained a personal loan of
approximately $100,000 from his separately owned brokerage account,
and used the proceeds of this loan to pay the $100,000 down payment
on the Hobbs Road property. In addition, the parties obtained a
joint loan of $150,000 from Chevy Chase Bank, and jointly executed
a promissory note for $150,000 and a deed of trust in favor ofChevy Chase Bank. The $150,000 loan secured by a deed of trust is
the only lien on the Hobbs Road property.
The parties have agreed to divide the Hobbs Road property
using the buyout provision of the premarital agreement; they also
agree that the value of the property on the date of separation was
$259,000.00, and that the amount of the imputed commission is
$15,540.00. The parties disagree, however, on the proper
interpretation of the phrase outstanding indebtedness on said
property. Defendant argues that, because he used the money
borrowed from his personal brokerage account for a down payment on
the Hobbs Road property, his personal loan became part of the
outstanding indebtedness on the property. Plaintiff, however,
contends that outstanding indebtedness on the property properly
refers only to debt secured by the property, which in this case is
limited to the debt owed on the $150,000.00 promissory note secured
by the deed of trust. We agree with plaintiff.
The phrase outstanding indebtedness on the property contains
no obscure terms, and may be interpreted in light of the words'
ordinary meaning in the context of a real estate transaction.
Thus, outstanding means unpaid; uncollected; indebtedness is
something owed; a debt; and on means supported by or attached
to. Black's Law Dictionary 771, 1129 (7th ed. 1999); The Oxford
Encyclopedic English Dictionary 1014 (Judy Pearsall & Bill Trumble,
eds., Oxford University Press 2d ed. 1995). Accordingly, the
outstanding indebtedness on the property may be rephrased as the
unpaid debt supported by or attached to the property. Thisclearly includes the debt owed on the promissory note because it is
secured by the Hobbs Road property, and thus is supported by or
attached to the property. However, defendant's loan from the
brokerage account is secured by his stocks and other assets he has
in that account, and is not secured by the Hobbs Road property.
Therefore, it is an indebtedness on the assets in his brokerage
account, and not a debt on the Hobbs Road property. We conclude
that the outstanding indebtedness on the property does not
include debts, such as personal loans, that are not secured by the
property, regardless of whether the proceeds of such a personal
loan were applied towards the purchase of the property. Defendant
cites no authority to the contrary and we find none.
 Defendant also argues that the premarital agreement is
internally inconsistent and ambiguous, and that a jury must resolve
the ambiguity. The ambiguity posited by defendant is a purported
conflict between (1) language in paragraph four stating that
after marriage each party would retain sole and separate ownership
of his or her respective separate property, including defendant's
brokerage account, and (2) language in paragraph eleven stating
that [r]eal property purchased in Ron and Sue's joint names shall
be marital property regardless of the source of the funds.
Defendant's argument ignores the following introductory
language of paragraph four: Except as otherwise provided herein
each party shall retain the ownership of separate property.
Paragraph eleven does not conflict with paragraph four, but is
merely one of the exceptions that are otherwise provided herein. Defendant's argument was rejected by this Court in Franzen v.
Franzen, 135 N.C. App. 369, 520 S.E.2d 74 (1999). The defendant in
Franzen, like this defendant, argued that there was an internal
inconsistency in a premarital agreement, based on a similar
purported ambiguity. This Court held:
Defendant's claimed ambiguity is that the
provision in Section Five that any property
titled jointly is to be considered marital
property clashes with the statement in Section
Four that all separate assets are to remain
separate, even if those assets change form.
His argument, however, overlooks the language
in Section Four that separate assets remain
separate property unless otherwise provided in
this Agreement. This caveat eliminates any
ambiguity. Separate assets do remain separate
property, even if they change form, but only
if they do not become marital property.
Franzen, 135 N.C. App. at 372, 520 S.E.2d at 76. We find Franzen
controlling on this issue.
 Defendant also argues that he did not intend for the
down payment to be a gift to the marriage. This issue is
relevant when the trial court enters an order for equitable
distribution. See N.C. Gen. Stat. § 50-20(b)(2) (2003). However,
the instant case does not involve equitable distribution.
Defendant offers no authority suggesting that consideration of his
subjective intentions as to the down payment is germane to our
interpretation of this premarital agreement, and we find none.
 Defendant next argues that the trial court erred by
considering the affidavit of attorney Richard Shope, on the ground
that the affidavit was not admissible under the North Carolina
Rules of Evidence. However, defendant failed to object to thisaffidavit at the trial level. [T]o preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context. N.C.R. App. P.
10(b)(1). In the instant case, defendant did not object to the
trial court's consideration of the affidavit. Since this issue
was never considered by the trial court and is raised for the first
time on appeal, it is not properly before this Court, and we
decline to address it. In Re Foreclosure of Brown, 156 N.C. App.
477, 490, 577 S.E.2d 398, 406 (2003).
We have considered defendant's remaining arguments regarding
the real estate buyout issue, and find them to be without merit.
We conclude that the trial court did not err by granting summary
judgment in favor of plaintiff on the issue of the real estate
 Defendant argues next that, even assuming the court
correctly entered summary judgment for plaintiff, it erred by
including in its order a paragraph ordering specific performance
of the premarital agreement contract. The relevant sections of the
order are as follows:
IT IS HEREBY ORDERED . . . as a matter of law,
that Judgment shall be entered in favor of the
Plaintiff, on the issues related to
Defendant's buy out of Plaintiffs interest in
the joint real estate/Hobbs Road Property. It
is therefore ORDERED as follows:
1. Defendant shall pay Plaintiff, an amount equal
to the fair market value of the Hobbs Road
joint real estate ($259,000.00) less 6%
imputed real estate commissions ($15,540.00),
less the amount required to satisfy the joint
mortgage lien indebtedness secured by the
Hobbs Road joint real estate on August 4, 2002
and said net total being divided by two (FMV -
indebtedness - 15,540.00 = x, x . 2).
2. Plaintiff shall execute a Quit Claim Deed in
favor of Defendant to be delivered to the
closing on the satisfaction of the joint
indebtedness for recordation simultaneous with
the satisfaction of the joint indebtedness and
payment to Plaintiff as set forth above.
3. Plaintiff is entitled to the relief of
specific performance of the Pre-Marital
Agreement provisions requiring Defendant to
pay Plaintiff for her interest in the joint
real estate/Hobbs Road property in the amount
equal to one-half of the fair market value of
the property, stipulated to be $259,000.00
less an imputed 6% real estate commission,
stipulated to be $15,540.00, less the amount
required to satisfy the joint mortgage lien
indebtedness secured by the property on August
4, 2002, said total being divided by two
($259,000 - $15,540.00 - balance owed on joint
mortgage lien on August 4, 2002 = x, x . 2).
Defendant shall pay all amortized principal,
interest and late fees, if any, up to the date
4. Defendant shall immediately take all steps
necessary to satisfy the joint mortgage lien
secured thereby, removing Plaintiff's name
from the existing Note and Deed of Trust.
Defendant argues that the trial court erred by ordering
specific performance of the premarital agreement without making a
finding of fact that there was no adequate remedy at law. We
conclude it is unnecessary to reach this issue on the facts of this
case. The only reference to specific performance is in paragraph
three of the decretal part of the order. Paragraph three basicallyreiterates the provisions of the other paragraphs in the order, and
the specific performance described therein orders defendant to
pay plaintiff the same amount of money that the court ordered in
paragraph one. Because the practical result for the parties would
be the same even if paragraph three were deleted, we conclude that
it is unnecessary to reach the issue of whether the court's order
of specific performance is adequately supported by its findings
of fact. This assignment of error is overruled.
Plaintiff's Appeal _ Joint Checking Account
 Plaintiff appeals the trial court's award of summary
judgment for defendant on her claim for breach of the premarital
agreement's terms pertaining to the parties' joint checking
account. Plaintiff contends that summary judgment in her favor
should have been granted.
The premarital agreement addressed the parties' joint checking
account, in pertinent part, as follows:
. . . .
10. . . . The parties will open a joint checking
account into which Ron and Sue will each
contribute monthly amounts. The amount to be
contributed by each spouse shall be mutually
agreed upon by Ron and Sue. At the
commencement of the marriage, the amount
contributed will be $400 by Sue and $4,417 by
Ron. . . . From said joint checking account
shall be paid the routine living expenses of
the parties including the house payment on the
primary residence of the parties[.] . . . In
the event that Ron and Sue separate, all
jointly held property shall be divided equally
between Ron and Sue. Until such time as any
indebtedness on jointly held real property is
satisfied, Ron and Sue will continue to
contribute to the joint checking account.
The parties agree that the above-quoted language required that
they open a joint checking account, into which plaintiff and
defendant agreed to make monthly deposits of $400 and $4,417,
respectively. It is also undisputed that the premarital agreement
required that, if the parties separated, they would nonetheless
continue to contribute to the joint checking account until any
indebtedness on jointly held real property is satisfied[.] Thus,
according to the plain language of the premarital agreement, we
conclude the parties were to continue making monthly contributions
to the joint checking account, even after separating, until
resolution of the real estate buyout issue.
Defendant argues that the trial court correctly entered
summary judgment in his favor. He first asserts that the statement
in the premarital agreement that [t]he amount to be contributed by
each spouse shall be mutually agreed upon by Ron and Sue reduces
the provisions for a joint checking account to no more than an
agreement to agree that is unenforceable. Defendant's
argument, that the parties never agreed on contribution amounts, is
belied by the agreement itself, which plainly states that At the
commencement of the marriage, the amount contributed will be $400
by Sue and $4,417 by Ron. These are mutually agreed on amounts,
and no further agreement was required unless the parties wanted to
change these amounts.
In a related argument, defendant contends that the premarital
agreement required the parties to contribute to the joint checking
account only as long as they agree[d] to do so. Defendantasserts that once the parties ceased to have a functional
marriage, he no longer wanted to contribute to the joint checking
account. Defendant's position is that, as soon as he stopped
wanting to participate in the joint checking account, there was no
longer the mutual agreement required under the premarital
agreement. In a similar argument, defendant argues that he could
disavow the joint checking account after the parties ceased to have
a functional relationship. Defendant cites no authority that
would allow a party to evade compliance with a valid contract on
the grounds that he no longer agreed to it or because the parties
ceased to have a relationship, and we find none.
We conclude that the premarital agreement required plaintiff
and defendant to contribute to their joint checking account. We
further conclude that they were required to continue these payments
after their separation, until such time as their joint indebtedness
on the Hobbs Road property was satisfied. Accordingly, the trial
court's order of summary judgment for defendant must be reversed,
and this matter remanded for entry of summary judgment in favor of
plaintiff on the issue of defendant's ongoing obligation to
continue making payments to the joint checking account based on
provisions of a valid, enforceable agreement.
 The parties have both appealed from the trial court's
award of attorneys' fees, awarded pursuant to paragraph sixteen
(16) of the premarital agreement. This paragraph provides that in
any proceeding to enforce the provisions of this Agreement, the
party prevailing whether by adjudication or settlement shall
recover reasonable attorney's fees from the other party. In theinstant case, the trial court granted summary judgment for
defendant on one claim, and summary judgment for plaintiff on the
other. However, we have determined that plaintiff is entitled to
at least partial summary judgment on the claim concerning the joint
checking account, and have upheld summary judgment in her favor on
the claim concerning the real estate buyout provision. As there is
no way to ascertain the role that the trial court's order of
summary judgment for defendant played in its award of attorneys
fees, we reverse and remand with instructions to the trial court to
enter a new award of fees as a part of its final order.
We conclude that the trial court's order of summary judgment
for plaintiff on claims arising from the real estate buyout
provision should be affirmed; the court's entry of summary judgment
for defendant on claims arising from the parties' joint checking
account should be reversed; and that the trial court's order for
attorneys' fees should be reversed and remanded for entry of a new
Affirmed in part, reversed in part, and remanded.
Judges WYNN and CALABRIA concur.
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