Appeal by defendant from order entered 16 September 2003, nunc
9 January 2003, by Judge J.H. Corpening, II in District
Court, New Hanover County. Heard in the Court of Appeals 16
Lea, Rhine & Rosbrugh, by Lori W. Rosbrugh, for plaintiff-
Smith, Smith & Harjo, by Jennifer Harjo, for defendant-
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
. . . .
9. PERSONAL AND OTHER PROPERTY DIVISION AND
. . .
. . . .
f. Stocks and Bonds
. The parties
have stipulated and agreed that
contemporaneously with the
execution of this [separation]
[a]greement, transfer one-half
or approximately $90,000.00
from his 401(k) Plan to
. . . .
. . . .
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
In an order entered 16 September 2003, nunc pro tunc
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.
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
. . . .
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.
, 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
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
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.
, 81 N.C. App. 71, 76, 343 S.E.2d 581, 585 (1986). In Pataky
, 160 N.C. App. 289, 585 S.E.2d 404 (2003), aff'd per
, 359 N.C. 65, 602 S.E.2d 360 (2004), our Court recently held
[W]here the parties have executed a separation
agreement that includes [a] provision for
child support, the [trial] court must
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.
. 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
. at 306, 585 S.E.2d at 415; see also 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
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.
, 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
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
, and held repeatedly that in this
situation, specific findings of fact must be made by the trial
, 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.
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
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.
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
. 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.
, 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.
, 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.
, 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.
, 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.
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
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.
, 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.
, 145 N.C. App. 453, 458, 550 S.E.2d 266, 270 (2001).
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
. . . .
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
. . . .
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).
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
WILLIAM J. WEISBERG,
New Hanover County
No. 02 CVD 3939
LOU ANN GRIFFITH
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
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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