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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-361


Filed: 06 March 2007


v .                         Guilford County
                            No. 02 CVS 10553

    Appeal by defendant from judgment entered 7 November 2005 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 1 November 2006.

    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.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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