SUE ALLISON BROADWELL ROBERTS,
Plaintiff,
v
.
Guilford County
No. 02 CVS 10553
RONALD WAYNE ROBERTS,
Defendant.
Floyd and Jacobs, L.L.P., by Constance F. Jacobs, and William
G. Barbour, for plaintiff-appellee.
Mercedes O. Chut for defendant-appellant.
STEELMAN, Judge.
Under the provisions of the parties' premarital agreement,
defendant was entitled to a credit for mortgage payments made
during the separation of the parties against sums that he should
have contributed to the parties joint checking account as required
by our prior decision in this matter. We thus again reverse this
matter and remand it to the trial court.
The facts in this case are largely undisputed. Plaintiff and
defendant signed a premarital agreement on 1 September 2000. They
were married on 9 September 2000. During the summer of 2002, they
separated. Plaintiff wrote a letter to defendant on 6 August 2002,
reminding him of the premarital agreement and their obligation tocontinue depositing mutually agreed upon amounts into their joint
checking account until the indebtedness on the marital home was
satisfied or until one party bought out the other's interest in the
marital home. Defendant refused to make deposits to the joint
checking account and thereafter plaintiff also ceased making such
deposits. On 1 October 2002, plaintiff filed a complaint in
Guilford County Superior Court alleging that defendant had breached
the premarital agreement by failing to contribute sums into the
joint checking account following the parties' separation. On 28
April 2004, Judge Cromer entered an order of partial summary
judgment in favor of defendant, dismissing plaintiff's claim as to
defendant's duty to contribute to the joint checking account.
Plaintiff appealed the order to this Court. On 20 September 2005,
this Court reversed the trial court's grant of partial summary
judgment for defendant on the joint checking account issue.
Roberts v. Roberts, 173 N.C. App. 354, 618 S.E.2d 761 (2005). On
remand, the trial court entered an order of partial summary
judgment in favor of plaintiff, ruling that plaintiff was damaged
in the sum of $79,413.19, plus interest through October 2005 as a
result of defendant's breach of the provision of the premarital
agreement requiring the parties to contribute monies to the joint
checking account, post-separation. The trial court also entered a
separate order ruling that plaintiff was entitled to recover
$65,475.00 from defendant as attorney's fees under the terms of the
premarital agreement. Defendant appeals from these orders. We note that
summary judgment is proper when “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005).
On appeal from summary judgment, “[w]e review the record
in the light most favorable to the non-moving party.” Bradley v.
Hidden Valley Transp., Inc., 148 N.C. App. 163, 165, 557 S.E.2d
610, 612 (2001) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218
S.E.2d 379, 381 (1975)), aff'd per curiam, 355 N.C. 485, 562 S.E.2d
422 (2002).
In his first argument, defendant contends that the trial court
erred in the computation of damages awarded to plaintiff for
defendant's breach of the premarital agreement. We agree.
The provisions of the premarital agreement pertinent to this
appeal are as follows:
10. JOINTLY HELD PROPERTY. The parties may,
during their marriage, jointly acquire
property, or interest therein, in both of
their names, with or without rights of
survivorship. Joint property shall
include all assets held in both names,
all property acquired with income or
proceeds from other joint properties, all
property obtained in exchange for joint
property, all joint gifts and all
property acquired after the marriage
which are not specifically titled in the
name of either party (such as furniture,
art, etc.). Each party shall have an
undivided one-half interest in jointly
held property no matter whom purchased or
the nature of funds used in making the
purchase.
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. If either party shall
have his or her income reduced by reason
of retirement, illness, or disability,
the amount contributed will change. 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 and
any other jointly held real property,
groceries, trips, routine vehicle
repairs, tires, and maintenance (but not
indebtedness incurred for the purchase of
a vehicle) [sic] Such other expenditures
as shall be agreed upon shall be paid
from said account....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.
Paragraph 11 of the premarital agreement provides for the
disposition of real property upon the separation of the parties.
Either party had the right to purchase the other's interest in the
real estate for one-half of the fair market value less six percent,
less one-half of the outstanding indebtedness on the property.
Our previous opinion in this matter stated that:
[T]he 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.
Roberts, at 363-64, 618 S.E.2d at 768. This holding is the law of
this case, and this panel is bound thereby. See N.C.N.B v.
Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631
(1983); Brown v. Brown, __ N.C. App. __, __ 638 S.E.2d 622, 624
(2007).
Judge Cromer's order found that defendant owed plaintiff the
sum of $79,413.19 for failure to make payments into the joint
checking account, through October of 2005, with an additional
amount of $2,000.00 accruing for each month thereafter. This sum
was determined by calculating the sums which both plaintiff and
defendant were required to contribute to the joint checking
account, subtracting the amount that plaintiff should have
contributed, and then dividing that amount by two. Nowhere in this
calculation did the trial court consider any payments made by
defendant for the indebtedness on the Hobbs Road property.
Premarital agreements are contracts. Principles of
construction applicable to contracts are applicable to premarital
agreements. Stewart v. Stewart, 141 N.C. App. 236, 240, 541 S.E.2d
209, 212 (2000). “Like other contracts, if [a premarital
agreement] is not ambiguous, it should be construed in accordance
with its wording to effectuate the intention of the parties as it
existed at the time of the execution of the agreement.” Stewart v.
Stewart, 222 N.C. 387, 391, 23 S.E.2d 306, 309 (1942).
Paragraph 10 of the premarital agreement expressly provides
that the routine living expenses of the parties were to be paid
from the monies contributed to the joint checking account by eachof the parties. Included in these expenses was the “house payment
on the primary residence of the parties.” The premarital agreement
never contemplated that money would accumulate in the joint
checking account. Rather it was envisioned as a “working account”
to meet the joint living expenses of the parties each month.
Following the separation of the parties, defendant continued
to reside in the Hobbs Road property and make the payments due on
the mortgage. Defendant contends that the mortgage payment should
have come out of the joint checking account, as provided in the
premarital agreement, and thus he should have a credit for the
payments made between June of 2002 and October of 2005, and
continuing on through the sale of the residence. After reviewing
paragraphs 10 and 11 of the premarital agreement and this Court's
prior opinion, we must hold that defendant's contention has merit.
Our prior opinion specifically tied the duration of the
required contributions by the parties into the joint checking
account to the satisfaction of the indebtedness on the Hobbs Road
property. The premarital agreement clearly contemplated that the
mortgage payment be made from the joint checking account. Since
defendant undertook to pay an obligation that should have been paid
from the joint checking account from his own personal funds, he is
entitled to a credit for that amount against the funds which he
should have contributed to the joint checking account. This
conclusion is confirmed by the provisions of paragraph 11 of the
premarital agreement. The purchase price of the property or the
division of the sales proceeds in the event of a sale to a thirdparty is as of date of sale, not of separation. Thus, both
plaintiff and defendant will reap the benefit of the payments made
by defendant from the date of separation until the date of sale.
By not awarding defendant any credit for these payments, the trial
court gave to plaintiff an unjustified windfall of one-half of the
amount of the mortgage payments made by defendant, while also
allowing her to reap the benefits of the payments at the time of
sale (in the form of a reduction of the indebtedness of the
property). We hold that the trial court erred in calculating the
damages owed to plaintiff for the failure to make deposits to the
joint checking account, and remand for a recalculation of those
damages.
In his second argument, defendant contends that the attorney's
fees award was improperly calculated. We agree.
The premarital agreement 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.” We have remanded this
matter for recalculation of sums due to plaintiff as a result of
the parties' failure to make contributions to the joint checking
account. Because defendant has prevailed on this appeal, the trial
court must consider anew which party has prevailed, and enter an
order containing findings of fact and conclusions of law in support
of its award. In making any award of attorney's fees, the trial
court shall determine whether the premarital agreement contemplates
an award of attorney's fees to the prevailing party upon finalresolution of all matters in dispute under the premarital agreement
or whether it allows for interim awards of attorney's fees upon the
resolution of portions of matters in dispute under the premarital
agreement.
We conclude that the trial court's order specifying damages
for plaintiff on the joint checking account issue and attorney's
fees should be remanded for recalculation. The trial court shall
determine whether there exist genuine issues of material fact as to
the damages due to plaintiff under the premarital agreement or
whether the issue of damages should be submitted to a jury.
Because we reverse the trial court's orders regarding these
issues, we need not address defendant's remaining assignments of
error.
REVERSED and REMANDED.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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