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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 03 July 2007
WALTER JAMES FUCITO,
No. 93 CVD 66
FRANCINE MARIA FRANCIS,
Appeal by defendant from judgment entered 7 June 2006 by Judge
Gregory R. Hayes in Caldwell County District Court. Heard in the
Court of Appeals 29 March 2007.
Lucy R. McCarl, for plaintiff-appellee.
Nick Galifianakis & Associates, by Nick Galifianakis and David
Krall, for defendant-appellant.
The trial court had subject matter jurisdiction and properly
considered the equitable distribution statute and rules of contract
construction in interpreting the provisions of the parties'
Separation Agreement that was incorporated into a divorce judgment.
The trial court properly vested title to the real estate in
plaintiff pursuant to the provisions of N.C. R. Civ. P. 70.
On 10 June 1967, Walter James Fucito (plaintiff) and
Francine Maria Frances (defendant) were married. On 26 December
1991, plaintiff and defendant separated. On 30 September 1992, the
parties entered into a Separation and Property Settlement Agreement
(Separation Agreement). On 10 March 1993, plaintiff was grantedan absolute divorce, and the Separation Agreement was incorporated
into the divorce judgment.
This matter was previously before this Court and an opinion
was filed on 20 December 2005. Fucito v. Frances, 175 N.C. App.
144, 622 S.E.2d 660 (2005). This Court held that after a
separation agreement is incorporated into a divorce judgment the
proper method to enforce the judgment is to file a motion for
contempt. Id. at 148, 622 S.E.2d at 663. In the contempt
proceedings, the trial court has the authority to interpret the
provisions of the judgment which incorporated the Separation
Agreement, and it is permitted to consider normal rules of
interpreting or construing contracts. Id. at 150, 622 S.E.2d at
664 (emphasis in original). Much of the factual background of this
case is recited in our earlier opinion and is not repeated here.
On 22 February 2006, plaintiff filed a verified motion in the
1993 divorce proceeding seeking to have defendant held in contempt
of court for failing to execute a deed in favor of plaintiff for
the former marital residence. Plaintiff also sought an award of
attorney's fees and entry of a judgment of the court vesting title
in the former marital residence in plaintiff, pursuant to N.C. R.
Civ. P. 70. On 22 February 2006, Judge Hayes entered a Show Cause
Order directing defendant to appear on 10 April 2006 and show cause
why she should not be held in contempt of court. A hearing was
held on 16 May 2006. Defendant filed no response to the motion to
show cause; did not appear at the hearing; and presented no
evidence. On 7 June 2006, Judge Hayes entered an order divestingdefendant of her interest in the former marital residence, and
vesting title in plaintiff. Defendant appeals.
Standard of Review
Our standard of review on appeal from a bench trial is whether
there was competent evidence to support the findings of fact and
whether the conclusions of law were proper in light of those facts.
Lee v. Lee, 167 N.C. App. 250, 253, 605 S.E.2d 222, 224 (2004).
While findings of fact by the trial court in a non-jury case are
conclusive on appeal if there is evidence to support those
findings, conclusions of law are reviewable de novo. Id.
Subject Matter Jurisdiction
In her first argument, defendant contends that the trial
court's reference to the statutory provisions concerning the
equitable distribution of marital property, N.C. Gen. Stat. § 50-20
et seq, converted plaintiff's contempt action into one for
equitable distribution. Since under the terms of the Separation
Agreement, the parties waived their right to equitable
distribution, defendant contends that the trial court was without
jurisdiction to hear this matter. We disagree.
In finding of fact 9 of the Order, the trial court found:
The Court, in interpreting the incorporated
agreement, notes that the provisions that both
parties cite as authority are located in the
portion of the Separation Agreement titled
VI. PROPERTY SETTLEMENT which further states
in its preamble that the agreement is made
consistent with the concept of equitable
distribution, and pursuant to the provisions
of the North Carolina General Statutes,
Section 50-20(d). [sic]
Defendant does not argue that this finding is not supported by
competent evidence, and it is thus binding on this Court. Fakhoury
v. Fakhoury, 171 N.C. App. 104, 108, 613 S.E.2d 729, 732 (2005).
Based upon this language, contained in the Separation
Agreement that was incorporated into the divorce judgment, the
trial court did not err in considering the provisions of N.C. Gen.
Stat. § 50-20 et seq in construing the provisions of the Separation
Agreement. The fact that the trial court considered this statute
in its construction of the provisions of the Separation Agreement
did not convert the contempt proceeding into an action for
We further note that defendant in this argument does not argue
that the trial court incorrectly construed the Separation
Agreement, only that the consideration of N.C. Gen. Stat. § 50-20
et seq divested it of subject matter jurisdiction. This assignment
of error is without merit.
Application of Principles of Contract Law to Interpret the
In her second argument, defendant contends that [t]he
District Court erred in applying the principles of contract law to
interpret the provisions of the 10 March 1993 incorporated consent
divorce judgment. We disagree.
We first note that defendant's argument is rambling and for
the most part has little or no connection to her assignment of
error. Given these limitations, we address this assignment of
error and the supporting argument as best we can. We further notethat it is not the role of this Court to consider arguments that a
party should have made, or to create arguments not articulated by
a party. Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361
As to the assignment of error, this question was resolved by
our prior opinion in this matter:
With the limitation of remedies stated in
Walters and Doub for disputes arising from
settlement agreements incorporated into
consent divorce judgments, we agree with the
Court in Blevins and hold that the trial court
has the authority under those circumstances to
construe or interpret an ambiguous consent
judgment. When doing so, however, it is
appropriate to consider normal rules of
interpreting or construing contracts.
Fucito, at 150, 622 S.E.2d at 664 (emphasis in original). Thus, if
there exists an ambiguity in the Separation Agreement, then the
trial court was authorized to consider normal rules of interpreting
or construing contracts. We note that defendant nowhere argues
that the disputed terms of the Separation Agreement were not
ambiguous. Rather, defendant argues the following:
(1) The trial court rewrote the contract and
imposed liabilities on the parties that
they did not bargain for;
(2) Plaintiff understood the terms of the
agreement and made no attempt to
challenge the terms of the separation
(3) Plaintiff was represented by counsel at
all stages of the proceedings;
(4) Plaintiff and defendant exchanged
correspondence in 1995 that supports
defendant's construction of the
The trial court found the provisions of the Separation Agreement
pertaining to the purchase of the former marital residence to be
ambiguous, and properly applied rules of contract construction and
the principles of N.C. Gen. Stat. § 50-20 et seq to determine the
intent of the parties. The fact that the trial court reached an
opposite conclusion from that advocated by defendant does not mean
that the trial court rewrote the Separation Agreement. The
assertions that plaintiff understood the terms of the agreement and
was represented by counsel are not helpful is discerning the intent
of the parties. More persuasive is the trial court's finding of
fact 14, which states [t]he parties' Separation Agreement was
drawn by the Defendant's attorney, and under principals [sic] of
contract law, the ambiguous terms of a contract are to be construed
against the drafter of the agreement. Defendant makes no argument
that this finding was not supported by competent evidence, and it
is binding upon this Court.
Finally, the letters argued in defendant's brief were properly
before the trial court, as it reviewed and considered the entire
file in the previous declaratory judgment action. These letters
were exchanged between the parties in 1995 following defendant's
election to continue the payments of $1,500 per month, rather than
receive an additional $125,000 lump sum payment. They primarily
deal with the federal income tax consequences of defendant's
election, and whether the periodic payments would be viewed as
alimony rather than payments of a property settlement. Defendanttook the position that the payments were made over time, in
satisfaction of a property settlement.
It is clear that the trial court considered these letters in
making its decision, but made no findings of fact concerning the
letters. In a bench trial, the trial court is not required to make
findings of fact as to each piece of evidence considered. Quick v.
Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). The trial
court is required to make findings relevant to the decision made,
and conclusions of law based thereon. Id. This was done by the
trial court in this case. This assignment of error is without
Order of Conveyance of Real Property
In her third argument, defendant argues that since the
language of the Separation Agreement was ambiguous, the trial court
could not have held her in contempt and ordered the transfer of the
real property to plaintiff. We disagree.
Plaintiff's motion sought to have defendant held in contempt
of court and
to have the real property transferred pursuant to the
provisions of N.C. R. Civ. P. 70. The trial court specifically
concluded: The Court declines to find the Defendant in civil
contempt of this Court's March 10, 1993 Order due to the ambiguous
terms of the Divorce Judgment which incorporated the parties'
Defendant specifically acknowledges language from this Court's
prior opinion, which held under the rationale of Blevins
trial court had the authority to construe or interpret anambiguous consent judgment. Fucito
, at 150, 622 S.E.2d at 664.
We further note that defendant's argument in the prior case was
that plaintiff could not seek construction of a consent judgment by
means of a declaratory judgment action, but rather had to proceed
by means of a contempt action. This is exactly what plaintiff did
in this matter.
We note that defendant does not argue that it was improper to
join a claim for vesting of title under N.C. R. Civ. P. 70 with the
motion for contempt, or that the trial court was required to hold
defendant in contempt prior to ordering the vesting of the title to
the property in plaintiff.
N.C. R. Civ. P. 70 provides that:
If real or personal property is within the
State, the judge in lieu of directing a
conveyance thereof may enter a judgment
divesting the title of any party and vesting
it in others and such judgment has the effect
of a conveyance executed in due form of law.
In this case, the trial court found that the previously entered
consent judgment required defendant to execute a deed to the real
property to plaintiff. It was not necessary for the trial court to
hold defendant in contempt, or order her to execute a deed to the
property under N.C. R. Civ. P. 70. Rather, under the above-cited
portion of N.C. R. Civ. P. 70, the trial court was authorized to
enter an order vesting title to the property in the plaintiff.
This assignment of error is without merit.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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