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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1237

NORTH CAROLINA COURT OF APPEALS

Filed: 03 July 2007

WALTER JAMES FUCITO,
    Plaintiff,

v .                         Caldwell County
                            No. 93 CVD 66
FRANCINE MARIA FRANCIS,
    Defendant.

    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.

    STEELMAN, Judge.

    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 equitable distribution.
    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 Separation Agreement
    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 (2005).
    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 agreement;

        (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 Separation agreement.
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 merit.
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' Separation Agreement....”
    Defendant specifically acknowledges language from this Court's prior opinion, which held under the rationale of Blevins that the 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.
    AFFIRMED.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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