An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-380

NORTH CAROLINA COURT OF APPEALS

Filed: 19 July 2005

WILLIAM J. WEISBERG,
    Plaintiff-Appellee,

v .                         New Hanover County
                            No. 02 CVD 3939
LOU ANN GRIFFITH
(Formerly Weisberg),
    Defendant-Appellant.

    Appeal by defendant from order entered 16 September 2003, nunc pro tunc 9 January 2003, by Judge J.H. Corpening, II in District Court, New Hanover County. Heard in the Court of Appeals 16 February 2005.

    Lea, Rhine & Rosbrugh, by Lori W. Rosbrugh, for plaintiff- appellee.

    Smith, Smith & Harjo, by Jennifer Harjo, for defendant- appellant.

    McGEE, Judge.

    William Weisberg (plaintiff) and Lou Ann Griffith (defendant) were married on 24 December 1983. Two children were born of the marriage. The parties entered into a separation agreement on 18 December 2001 wherein defendant received primary custody of the children. The separation agreement also provided that plaintiff would pay $1,500.00 per month in child support and half of the cost of the children's extracurricular activities and uninsured medical expenses. The parties further agreed to be "equally responsible for providing a complete college education for the children." Inaddition, the separation agreement contained the following relevant provisions:

PROPERTY SETTLEMENT

        . . . .
        9.    PERSONAL AND OTHER PROPERTY DIVISION AND SETTLEMENT. . . .

            . . . .

            f.    Stocks and Bonds. The parties have stipulated and agreed that [plaintiff] shall, contemporaneously with the execution of this [separation] [a]greement, transfer one-half or approximately $90,000.00 from his 401(k) Plan to [defendant's] 401(k) Plan. . . .

            . . . .
CHILD CUSTODY AND SUPPORT

            . . . .

        13.    PARTIES' RELOCATION. . . . [T]he parties stipulate and agree that, in the event either or both of the parties relocate their residences, and reside more than 50 miles apart (door to door) the parties shall make mutual arrangements for transporting the children for visitation . . . . The parties also recognize that the distance between their residences may result in extraordinary transportation costs to either or both parties, and that such costs may be considered by the [c]ourt in reviewing [plaintiff's] child support obligation, in accordance with the . . . Guidelines then in effect.
The parties were divorced on 1 February 2002. The separation agreement was not incorporated into the judgment of divorce.     Defendant subsequently informed plaintiff that she intended tomove with the children from North Carolina to West Virginia. In response, plaintiff filed a complaint for child custody and for child support in accordance with the North Carolina Child Support Guidelines (the Guidelines). Defendant counterclaimed for breach of contract, anticipatory breach of contract and specific performance for plaintiff's failure to: (1) transfer funds from his 401(k) plan to defendant's plan, (2) reimburse defendant for costs of the children's extracurricular and uninsured medical expenses, and (3) contribute to the children's prepaid college fund. Plaintiff also counterclaimed for child custody, child support and attorney's fees.
    In an order entered 16 September 2003, nunc pro tunc 9 January 2003, the trial court denied defendant's request that plaintiff contribute to the children's prepaid college fund. The trial court also ordered that plaintiff transfer one-half of his 401(k) account to defendant, based on the value of the fund on 9 January 2003. The trial court then ordered that, as of the date that defendant removed the children from North Carolina, defendant was only entitled to child support in the amount prescribed by the Guidelines. Finally, the trial court denied defendant's claim for attorney's fees. Defendant appeals.
I.

    We first address whether defendant's appeal is interlocutory. The trial court's order expressly left open the issue of a claim for child support up until the time that defendant removed the children from North Carolina:
FINDINGS OF FACT

        . . . .
        19.    As to [d]efendant's claim for a judgment in the difference in the amount the [separation] [a]greement calls for and the Guideline[s] amount, this [c]ourt finds that the [G]uideline[s] amount would be the entire amount . . . [d]efendant is entitled to from the point she intends to move the children from the State of North Carolina, as per the agreement states. . . . However, as to the issue of a judgment from the date of the filing of this action until such time that [d]efendant removes the children from this [S]tate, this [c]ourt reserves this issue for a further ruling.

        . . . .

        Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:

        . . . .
        6.    Defendant is not entitled to an Order of Specific Performance requiring . . . [p]laintiff to pay any monies to her as to the difference of the amount in the Agreement and the Guideline[s] amount at any time. However, as to the issue of a judgment from the date of the filing of this action until such time that [d]efendant removes the children from this [S]tate, this [c]ourt reserves this issue for a further ruling.

    An order that does not determine all of the issues, but rather leaves the case open for further determination, is interlocutory. Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807, disc. review denied, 318 N.C. 505, 349 S.E.2d 859 (1986). Normally, an appeal from an interlocutory order is premature and will be dismissed. Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30,34 (1975).
    We find that the order appealed from in this case is not interlocutory. Defendant did not counterclaim for any unpaid child support prior to the date she planned to leave North Carolina. Moreover, the record does not indicate that plaintiff failed to make any of his scheduled child support payments in the amount of $1,500.00 per month. Therefore, the trial court's order determined all the issues before the trial court and the order was not interlocutory.
II.

    Defendant assigns error to the trial court's order that child support be set in accordance with the Guidelines. Defendant argues she was entitled to a rebuttable presumption that the child support, as set forth in the parties' separation agreement, was just and reasonable, and that the trial court erred by failing to apply this presumption.
    It has long been the law of this State that "where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable." Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963); see also Williams v. Williams, 261 N.C. 48, 59, 134 S.E.2d 227, 235 (1964). In order to rebut this presumption, a party must "show the amount of support necessary to meet the reasonable needs of the child[ren] at the time of the hearing. . . . While evidence of a change in circumstances. . . may be relevant to the issue of reasonableness, such evidence is not an absolute requirement to justify an increase." Boyd v. Boyd, 81 N.C. App. 71, 76, 343 S.E.2d 581, 585 (1986). In Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd per curiam, 359 N.C. 65, 602 S.E.2d 360 (2004), our Court recently held that:
        [W]here the parties have executed a separation agreement that includes [a] provision for child support, the [trial] court must apply a rebuttable presumption that the amount set forth is just and reasonable and therefore application of the [G]uidelines would be inappropriate. Accordingly, before it applies the . . . [G]uidelines, the trial court must first consider the child support allowances in a separation agreement between the parties.

Id. at 301-02, 585 S.E.2d at 412-13 (emphasis added). When applying this test, the trial court must make specific findings of fact regarding the needs of the child at both the time of the hearing and the time when the separation agreement was entered into, and whether a party has rebutted the presumption of reasonableness. Id. at 306, 585 S.E.2d at 415; see also Bottomley v. Bottomley, 82 N.C. App. 231, 237, 346 S.E.2d 317, 321 (1986) (finding that a child support order was insufficient when it did not contain findings of fact relative to the child's past and present expenses and the parties' ability to pay); and Boyd, 81 N.C. App. at 80, 343 S.E.2d at 587 (stating that a child support obligation must be "supported by appropriate and adequate findings of fact to permit an appellate court to determine whether the award was supported by competent evidence or whether it amounted to an abuse of discretion"). Without adequate findings, a child supportorder must be remanded for further findings, even when a whole record review by this Court would support the necessary findings. Pataky, 160 N.C. App. at 306, 585 S.E.2d at 415.
    In this case, the trial court's order does not indicate whether the trial court considered a presumption that the $1,500.00 in monthly child support provided for in the separation agreement was reasonable. Similarly, the order fails to show that the trial court evaluated whether plaintiff had rebutted this presumption. The trial court made no specific findings regarding the presumption, whether the presumption was rebutted, or what the reasonable needs of the children were at the time of the separation agreement and at the time of trial. The trial court's order does not conform with the Pataky requirements, and we thus vacate the child support order and remand for further findings of fact and conclusions of law. Pataky, 160 N.C. App. at 301-02, 585 S.E.2d at 412-13; see also Boyd, 81 N.C. App. at 82, 343 S.E.2d at 588.
    Plaintiff counters that specific findings were not required since the relocation clause in the separation agreement provides for a recalculation of child support in accordance with the Guidelines in the event that one of the parties moved fifty miles away from the other party. We disagree.
    We recognize that the Guidelines contain the following provision:
        When the [trial] court does not deviate from the [G]uidelines, an order for child support in an amount determined pursuant to the [G]uidelines is conclusively presumed to meet the reasonable needs of a child considering the relative ability of each parent to providesupport, and specific findings regarding a child's reasonable needs or the relative ability of each parent to provide support are therefore not required.

North Carolina Child Support Guidelines, AOC-A-162, p. 1 (effective 1 October 2002). Nevertheless, this provision does not address the specific situation of a party seeking a deviation from a previously agreed amount of child support as stated in an unincorporated separation agreement. Our Court addressed this particular issue in Pataky, Bottomley and Boyd, and held repeatedly that in this situation, specific findings of fact must be made by the trial court. Pataky, 160 N.C. App. at 306, 585 S.E.2d at 415; Bottomley, 82 N.C. App. at 237, 346 S.E.2d at 321-22; Boyd, 81 N.C. App. at 78, 343 S.E.2d at 586. While we recognize that in the separation agreement, the parties did agree to a calculation of child support in accordance with the Guidelines should one of the parties move fifty miles away from the other, our case law mandates that the trial court make specific findings to support its order.
III.

    Defendant next assigns error to the trial court's failure to address defendant's claim for plaintiff's share of the cost of extracurricular activities and uninsured medical expenses. Plaintiff responds that the trial court's establishment of child support in accordance with the Guidelines resolves the issue of which party is responsible for these expenses.
    We first note that although the Guidelines generally address health care costs, they do not do so conclusively. Rather, the Guidelines state: "The [trial] court may order that uninsuredmedical or dental expenses in excess of $100 per year or other uninsured health care costs . . . be paid by the parents in proportion to their respective incomes." North Carolina Child Support Guidelines, AOC-A-162, p. 4 (effective 1 October 2002) (emphasis added). Under this provision, a trial court is vested with discretion in determining how uninsured health care costs are to be divided, and application of the Guidelines does not conclusively establish the allocation of uninsured health care expenses. Furthermore, the Guidelines do not specifically address the costs of extracurricular activities. Although the Guidelines contain a provision that addresses "extraordinary child-related expenses," the trial court is again given the discretion to order that the expenses be "paid by the parents in proportion to their respective incomes if the [trial] court determines the expenses are reasonable, necessary, and in the child's best interest." North Carolina Child Support Guidelines, AOC-A-162, p. 5 (effective 1 October 2002).
    In this case, the trial court did not address how these expenses were to be divided. The trial court also did not determine defendant's breach of contract claim that plaintiff had failed to reimburse her for the children's extracurricular and uninsured medical expenses. As a result, we remand for further findings of fact and conclusions of law.
IV.

    Defendant next assigns error to the trial court's order that plaintiff's 401(k) account be divided equally between the partiesbased on the value of the 401(k) account on 9 January 2003. Defendant argues that she is entitled to half of the value of the 401(k) account as of the date of the separation agreement, 18 December 2001, or $90,000.00. The trial court made the following relevant findings of fact:
        11.    The [trial] [c]ourt finds that the [separation] [a]greement is silent as to what date [plaintiff's] [401(k)] account should be divided.

        . . . .
        14.    The [401(k) account] should be equally split as of this date [9 January 2003].

        . . . .
        16.    This ½ division shall be as of today's date [9 January 2003] and it shall consist of ½ of the stocks, cash, bonds and mutual funds.

    Separation agreements are interpreted in accordance with general contract law principles. Lane v. Scarborough, 284 N.C. 407, 409, 200 S.E.2d 622, 624 (1973). Our review of a trial court's determination that the terms of a contract are ambiguous is de novo. Crider v. Jones Island Club, Inc., 147 N.C. App. 262, 267, 554 S.E.2d 863, 867 (2001), cert. denied, 356 N.C. 161, 568 S.E.2d 192 (2002). In determining whether the terms of a contract are ambiguous, "'words are to be given their usual and ordinary meaning and all the terms of the agreement are to be reconciled if possible[.]'" Tyndall-Taylor v. Tyndall, 157 N.C. App. 689, 692, 580 S.E.2d 58, 61 (2003) (quoting Piedmont Bank & Trust Co. v. Stevenson, 79 N.C. App. 236, 241, 339 S.E.2d 49, 52, aff'd percuriam, 317 N.C. 330, 344 S.E.2d 788 (1986)).
    We agree with the trial court that the separation agreement was silent as to the date on which the 401(k) account should be divided, and we hold that the separation agreement was ambiguous. The separation agreement provided that "contemporaneously with the execution of" the separation agreement, plaintiff was to "transfer one-half or approximately $90,000.00 from his 401(k) Plan to [defendant's] 401(k) Plan." However, the separation agreement does not define "contemporaneously," does not state the exact date on which the transfer should take place, nor indicate on which date the value of the 401(k) account was to be determined. In addition, although the parties agree that the separation agreement was executed on 18 December 2001, the separation agreement itself is silent as to what day the separation agreement was signed or entered into. The separation agreement merely states: "THIS SEPARATION AGREEMENT AND PROPERTY SETTLEMENT, made this ___ day of December, 2001 . . . ."
    We must next determine whether the trial court erred by ordering that plaintiff's 401(k) account be equally divided as of 9 January 2003. When the terms of a contract are ambiguous, a question of fact exists for the trier of fact. Farmers Bank v. Brown Distributors, 307 N.C. 342, 347-48, 298 S.E.2d 357, 360 (1983). We will uphold a trial court's findings of fact when they are supported by competent evidence in the record. Patterson v. Taylor, 140 N.C. App. 91, 95, 535 S.E.2d 374, 377 (2000).
    The intention of the parties governs a trial court'sinterpretation of a contract. Fidelity Bankers Life Ins. Co. v. Dortch, 318 N.C. 378, 380, 348 S.E.2d 794, 796 (1986). The trial court can look to extrinsic evidence when determining the parties' intention behind an ambiguous term. Patterson, 140 N.C. App. at 96, 535 S.E.2d at 378. Furthermore, a trial court may properly look to "extrinsic evidence of the conduct of the parties as they carry out the agreement." Id. at 97, 535 S.E.2d at 378.
    In this case, the trial court heard testimony and reviewed evidence surrounding the parties' beliefs during the time when the separation agreement was entered into, as well as the parties' behavior subsequent to the execution of the separation agreement. An extensive review of the record reveals that there was no evidence tending to show that the parties intended for the 401(k) to be divided as of 9 January 2003 or a date as determined by the trial court. The trial court made no findings as to the intention of the parties, but seemingly chose an arbitrary date on which to value the 401(k). We cannot find that any competent evidence supports the division of plaintiff's 401(k) as of 9 January 2003. We vacate the trial court's order that plaintiff's 401(k) be divided based on its value on 9 January 2003 and remand for further findings of fact and conclusions of law.
V.

    Defendant next argues that the trial court erred in denying plaintiff's claim for anticipatory breach of contract as a result of plaintiff's refusal to contribute to the children's prepaid college fund. At trial, defendant testified that the children wereenrolled in a prepaid college fund through the State of West Virginia. Plaintiff testified that although he no longer wished to contribute to the prepaid college fund, he acknowledged his commitment under the separation agreement to pay for one-half of the children's college education, and testified that he fully intended to do so when the children began college.
    The relevant provision of the separation agreement states:
CHILD CUSTODY AND SUPPORT

        . . . .
        14.    CHILDREN'S EDUCATION. The parties recognize their mutual desire for their children to have the opportunity to complete a college undergraduate education. The parties hereto shall be equally responsible for providing a complete college education for the children, which obligation shall include, but shall not be limited to, tuition, room and board, books, assessments and special fees, parking fees, athletic fees, and the like, as those expenses are measured or otherwise charged by the University of North Carolina at Chapel Hill, regardless of what college or university the children actually attend.
    In its order, the trial court made the following relevant finding of fact:
        10.    The [trial] [c]ourt finds that although the parties prior to separation had contributed ½ of a monthly payment to a prepaid college fund and the maternal grandparents had contributed the other ½, the [separation] [a]greement entered into between the parties simply states that each party would be equally responsible for providing a complete college education[.] Nowhere in the [separation] [a]greement did it mention the prepaid college fund and therefore this [c]ourtcan not require that [p]laintiff or [d]efendant now be required to contribute to said fund. The obligation to pay for the children's education does not include contributing to any prepaid fund and therefore this claim is dismissed.

    Defendant claims that, since at the time the parties entered into the separation agreement, they had been contributing to the prepaid college fund, the parties believed that the requirement to share the children's college expenses included a requirement to contribute to the prepaid college fund.
    When the terms of a contract are not ambiguous, extrinsic evidence may not be used to explain the parties' intention behind the agreement. Hartman v. Hartman, 80 N.C. App. 452, 457, 343 S.E.2d 11, 14 (1986). In this case, the provision concerning the parties' contribution to the children's college education is not ambiguous. It clearly states that each party will be equally responsible for the children's college education and all related expenses. It does not mention or allude to any particular manner in which the expenses must be paid. Since the provision is not ambiguous, the parties' alleged assumptions at the time of entering into the contract are not relevant.
    Since the terms of the contract were not ambiguous, the parties' intention is a question of law for the trial court to determine. Hagler v. Hagler, 319 N.C. 287, 294, 354 S.E.2d 228, 234 (1987). "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.'" Id. at 294, 354 S.E.2d at234 (alteration in original) (quoting Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198, 201 (1946) (citations omitted)). Absent unusual circumstances, "words in an unambiguous contract will be given their 'common or normal meaning.'" Marcuson v. Clifton, 154 N.C. App. 202, 204, 571 S.E.2d 599, 601 (2002) (quoting Marcoin, Inc. v. McDaniel, 70 N.C. App. 498, 504, 320 S.E.2d 892, 897 (1984), disc. review denied, 312 N.C. 797, 325 S.E.2d 631 (1985)). Having reviewed the plain and unambiguous language of the provision for college education expenses in the separation agreement, we conclude that the trial court did not err in dismissing defendant's claim that plaintiff wrongfully refused to contribute to the prepaid college fund. See Anderson v. Anderson, 145 N.C. App. 453, 458, 550 S.E.2d 266, 270 (2001).
VI.

    We next address defendant's final assignments of error in the event the same issues arise on remand. Defendant assigns error to the trial court's failure to order specific performance of the separation agreement and failure to award defendant attorney's fees. The separation agreement contained the following relevant provisions:
GENERAL PROVISIONS

        . . . .
        23.    ENFORCEMENT. The parties agree that the remedy at law for any breach of this [separation] agreement will be inadequate unless the provisions hereof shall be enforceable by specific performance and accordingly, either party shall be entitled to specifically enforce each and every provision of this agreement. Theright to specific performance of this [separation] agreement shall be in addition to all other rights and remedies either party may have at law or in equity arising by reason of any breach of the [separation] agreement by the other party.

        . . . .
        
        33.    SUIT COSTS. In the event either party shall institute an action to enforce the provisions of this [separation] agreement, the party prevailing in said action, whether by adjudication or settlement, shall be entitled to recover suit costs, including reasonable attorney's fees, from the other party.

    We first find that the trial court did not err in failing to order specific performance of the separation agreement. Although the separation agreement states that specific performance is the appropriate remedy in the event of a breach, the trial court did not find that there was any breach of the separation agreement. Therefore, defendant was not entitled to specific performance of the separation agreement.
    We also find that the trial court did not err in failing to award attorney's fees to defendant. The separation agreement only provides for attorney's fees to be awarded to the prevailing party. In this case, plaintiff, and not defendant, was the prevailing party. Defendant was not entitled to an award of attorney's fees.
    Affirmed in part, vacated in part and remanded.
    Judge TYSON concurs.
    Judge GEER concurs in part and concurs in the result in part in a separate opinion.
    Report per Rule 30(e).
NO. COA04-380

NORTH CAROLINA COURT OF APPEALS

Filed: 19 July 2005

WILLIAM J. WEISBERG,
        Plaintiff,

v .                         New Hanover County
                            No. 02 CVD 3939
LOU ANN GRIFFITH
(Formerly Weisberg),
        Defendant.

    GEER, Judge, concurring.

    I concur fully with the majority opinion except for its discussion regarding plaintiff's 401(k) account. As to that portion, I concur in the result. The majority agrees with the trial court that the parties' separation agreement is silent regarding the date as of which plaintiff's 401(k) should have been divided. Because, however, the majority concludes that the trial court's decision to divide the account as of 9 January 2003 is unsupported by competent evidence, the majority vacates that part of the trial court's order and remands for further findings of fact and conclusions of law.
    I disagree with the majority and the trial court with respect to whether the separation agreement specified the date for division of the 401(k) account. That agreement provided: "The parties have stipulated and agreed that Husband shall, contemporaneously with the execution of this Agreement, transfer one-half or approximately $90,000.00 from his 401(k) Plan to Wife's 401(k) Plan." Contrary to the majority, I do not believe that the word "contemporaneously"is ambiguous. Webster's Third New International Dictionary 491 (1968) defines "contemporaneous" as "existing or occurring during the same time." In other words, the separation agreement provided that the transfer of half of the 401(k) funds would occur at the same time as the signing of the separation agreement, which the parties agree occurred on 18 December 2001. Contrary to defendant's argument, she is not entitled to half of the value of the account as of the date of separation (an amount she contends is $90,000). Under the plain language of the agreement, defendant is entitled only to half of the value of the 401(k) account as of 18 December 2001.
    At a minimum, therefore, I believe that this case must be remanded for a determination of the value of the 401(k) account as of 18 December 2001. The trial court, however, found that defendant did not insist on a transfer of the funds as of 18 December 2001, but instead traded in the account "after the parties entered into the Separation Agreement." The trial court concluded, as a result, that "Plaintiff did not have exclusive control over said account and the loss suffered by said account should not be born solely by the Plaintiff." The trial judge did not, however, set out the legal theory under which he was proceeding in reaching his conclusion that the division of the account should be made as of some date after 18 December 2001. I, therefore, agree with the majority that we must remand for conclusions of law explaining the trial court's basis for concluding that the account should bevalued and divided effective on some date other than 18 December 2001 and for findings of fact supporting those conclusions of law.

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