BARBARA JEANNE BORGERSRODE,
(NOW BARBARA PEARCE)
Plaintiff,
v
.
Wayne County
No. 98 CVD 1015
DELWYN NEAL BORGERSRODE, JR.,
Defendant.
Mary McCullers Reece, for plaintiff-appellee.
Everett, Womble, Finan, Lawrence & Brown, L.L.P., by Darrell
K. Brown, for defendant-appellant.
JACKSON, Judge.
Barbara Pearce (“plaintiff”) and Delwyn Neal Borgersrode, Jr.
(“defendant”) were married from 31 August 1985 until they separated
on 8 May 1997. On 8 May 1997, the parties entered into a
Separation and Property Settlement Agreement (“Agreement”) which
provided in pertinent part that:
10. WAIVER OF ALIMONY. Provided the Husband
complies with the requirements of Paragraph
No. 11(a)(6), the Wife agrees to waive all
claims and demands against the Husband for
support, maintenance and alimony, both post-
separation support and permanent alimony,
including allowances for attorney fees andsuit money, which she now has or may hereafter
have, or may in any way be or become entitled
to by reason of her marriage to the Husband.
In the event the Husband fails to comply with
Paragraph No. 11(a)(6) contained herein, then
the Wife may reopen the issue of post-
separation support and permanent alimony and
have a determination made with regards to this
issue. . . .
11. PROPERTY DIVISION AND SETTLEMENT. It is
the intent and desire of the Husband and Wife
to make a division of their marital property
in a property settlement and they do hereby
agree to the following division of their
property:
(a) PERSONAL AND INTANGIBLE PROPERTY.
. . . .
(6) RETIREMENT. The Husband and
Wife agree that the Wife shall
receive 100% of the Husband's
monthly net military retirement
benefit for the next fifteen (15)
years, with payments beginning June
1, 1997 and continuing through May
1, 2012. The Husband and Wife agree
that the Wife shall receive all
annual increases as well. The
Husband and Wife acknowledge that
the net figure is currently $933.70
per month. The Wife is never to
receive less than $933.70 per month.
If the Husband's retirement benefit
is ever reduced below the $933.70
for whatever reason, then the
Husband agrees to pay the difference
between what the Wife is receiving
and $933.70. The Husband agrees
that the monthly retirement benefit
shall be deposited directly into the
Wife's checking account . . . .
. . . .
16. ENFORCEABILITY. The parties agree that
either party shall have the right to compel
the specific performance of this agreement and
may sue for the breach thereof in any Court
where the jurisdiction of the parties may beobtained or seek such other remedies or relief
as may be available to him or her. If either
party must proceed to action in Court to
enforce the provisions of this Agreement, it
is agreed that the Judge presiding may, in his
discretion, award the relief sought as well as
costs of court and reasonable attorney fees to
the prevailing party if the action is brought
in good faith.
A judgment granting the parties an absolute divorce was entered 22
June 1998, and the parties' Agreement was attached to and
incorporated into the divorce decree. The judgment granting the
parties a divorce was amended due to a clerical error, and an
amended judgment was entered 25 June 1998, also incorporating the
parties' Agreement.
On 13 February 2006, plaintiff filed a motion for contempt,
and an order to show cause was entered against defendant. In her
motion, plaintiff alleged that defendant had stopped making the
required military retirement benefits payments after the December
2005 payment, and thus he was in breach of the parties'
incorporated separation agreement. In a 27 February 2006 reply to
plaintiff's motion, defendant contended that, pursuant to paragraph
10 of the parties' Agreement, upon his breach of paragraph
11(a)(6), plaintiff was limited to seeking only to reopen the issue
of post-separation support and alimony, and that she was not
permitted to file a motion for contempt. Defendant contended that
by virtue of plaintiff's remarriage in October 2005, she would no
longer be eligible for alimony, and thus he should not have to
continue paying her the military retirement benefits. In an order filed 6 July 2006, the trial court held that the
parties' Agreement was not ambiguous, that paragraph 10 did not
preclude plaintiff from seeking any other remedies available at
law, and that defendant's failure to comply with the terms of the
Agreement were willful in nature and that he was in willful civil
contempt of the prior court order. Defendant was ordered to pay
the arrearage owed, and to continue paying 100% of his net monthly
military retirement benefits through 1 May 2012. Defendant appeals
from the trial court's order.
Defendant first contends the trial court erred in concluding
he was in willful civil contempt of the court's prior order.
Defendant concedes that he breached the terms of the Agreement by
ceasing his payment to plaintiff of the military retirement
benefits, however he argues that since the parties' Agreement was
incorporated into the divorce decree, the only way he could have a
trial court review the terms of the Agreement was to breach it.
Thus, he argues he should not be held in contempt for his breach,
as this was his only means of having the terms reviewed by the
trial court.
We begin by noting that there is nothing in the record before
us indicating that defendant raised this defense at the trial level
below. From the record, which includes defendant's reply to
plaintiff's motion for contempt, it appears as though defendant's
primary argument at the trial level was that he should be allowed
to cease paying plaintiff his military retirement benefits as a
result of plaintiff's remarriage. Our review of a civil contempt proceeding is “'limited to
determining whether there is competent evidence to support the
findings of fact and whether the findings support the conclusions
of law.'” Trivette v. Trivette, 162 N.C. App. 55, 60, 590 S.E.2d
298, 303 (2004) (quoting Sharpe v. Nobles, 127 N.C. App. 705, 709,
493 S.E.2d 288, 291 (1997)). Our law regarding civil contempt
further provides that
Failure to comply with an order of a court is
a continuing civil contempt as long as:
(1) The order remains in force;
(2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whom
the order is directed is willful; and
(3) The person to whom the order is directed
is able to comply with the order or is
able to take reasonable measures that
would enable the person to comply with
the order.
N.C. Gen. Stat. § 5A-21(a) (2005). On appeal, defendant has failed
to assign error to the trial court's specific findings of fact,
thus they are deemed to be supported by competent evidence and are
binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991).
In its Order holding defendant in contempt, the trial court
specifically found that:
17. The Defendant has had the requisite means
at all times to comply with the prior
Order, but the Defendant has failed to do
so.
18. The Court finds that Defendant's failure
to comply with the terms of said court
order are willful in nature and that the
Defendant should be held in willful civil
contempt of the prior court order. Thus, as these findings are binding on appeal and are sufficient to
support a finding of contempt, and as defendant has failed to
preserve this argument by first presenting it to the trial court
for determination, we hold that defendant's assignment of error is
overruled.
Defendant next contends the trial court erred in finding that
Paragraph 10 of the Agreement gives Plaintiff “one (1) option for
remedy should the Defendant fail to comply with the terms of
Paragraph 11(a)(6)” and that “there is nothing in Paragraph 10 that
precludes the Plaintiff from seeking any other remedies available
at law.” Defendant argues the trial court should have found that
under Paragraph 10, plaintiff elected the specific remedy of
pursuing alimony for defendant's breach of his duties under
Paragraph 11(a)(6). Defendant contends that Paragraph 10 serves as
plaintiff's sole remedy for any breach of Paragraph 11(a)(6), and
as such, she was not entitled to the benefit of Paragraph 16 as a
means to address defendant's failure to continue paying her the
retired military benefits.
Our courts long have held that:
“Questions relating to the construction and
effect of separation agreements between a
husband and wife are ordinarily determined by
the same rules which govern the interpretation
of contracts generally. Whenever a court is
called upon to interpret a contract its
primary purpose is to ascertain the intention
of the parties at the moment of its
execution.”Gilmore v. Garner, 157 N.C. App. 664, 666, 580 S.E.2d 15, 17-18
(2003) (quoting Lane v. Scarborough, 284 N.C. 407, 409-10, 200
S.E.2d 622, 624 (1973)).
“Intention or meaning in a contract may be
manifested or conveyed either expressly or
impliedly, and it is fundamental that that
which is plainly or necessarily implied in the
language of a contract is as much a part of it
as that which is expressed. If it can be
plainly seen from all the provisions of the
instrument taken together that the obligation
in question was within the contemplation of
the parties when making their contract or is
necessary to carry their intention into
effect, the law will imply the obligation and
enforce it. The policy of the law is to
supply in contracts what is presumed to have
been inadvertently omitted or to have been
deemed perfectly obvious by the parties, the
parties being supposed to have made those
stipulations which as honest, fair, and just
men they ought to have made.” However, “[n]o
meaning, terms, or conditions can be implied
which are inconsistent with the expressed
provisions.”
Id. at 667, 580 S.E.2d at 18 (quoting Lane, 284 N.C. at 410-11, 200
S.E.2d at 625). Thus, we must look to the language used to
determine the parties' intent at the time they entered into the
Agreement.
Paragraph 10 states that in the event defendant fails to make
the payments required under paragraph 11(a)(6), then plaintiff “may
reopen the issue of post-separation support and permanent alimony
and have a determination made with regards to this issue.”
(Emphasis added). There is nothing in this clause which requires
that plaintiff seek only a determination of alimony should
defendant fail to comply with paragraph 11(a)(6); in fact, the
clause simply serves as a limit upon what circumstances plaintiffwould have the ability to seek alimony at a later date. Further,
paragraph 16 provides that:
The parties agree that either party shall have
the right to compel the specific performance
of this agreement and may sue for the breach
thereof in any Court where the jurisdiction of
the parties may be obtained or seek such other
remedies or relief as may be available to him
or her.
This clause in no way limits the parties' right to compel specific
performance of any clauses of the Agreement. Therefore, based upon
the clear language of the parties' Agreement, we hold the trial
court did not err in finding that as a result of defendant's breach
of paragraph 11(a)(6), plaintiff had the option to elect her
remedy, and thus had the ability to seek a determination on alimony
or to compel specific performance. In the instant case, plaintiff
at her option, elected as her remedy a finding by the trial court
that defendant was in contempt based upon his failure to comply
with the terms of paragraph 11(a)(6), and she sought an order
allowing defendant to purge himself of the finding of contempt upon
his payment of the monies owed. As plaintiff had this option per
the parties' Agreement, we hold defendant's assignment of error is
therefore overruled.
Next, defendant contends the trial court erred in finding that
the parties' Agreement was not ambiguous. Defendant argues that
through paragraphs 10 and 16, the Agreement provides two
conflicting constructions of the appropriate remedies available
should defendant breach paragraph 11(a)(6). Defendant contends
that the trial court should have found the Agreement to beambiguous, and thus then should have limited plaintiff to the
remedy provided by paragraph 10.
Generally, “[w]hen the language of a contract is plain and
unambiguous, then construction of the agreement is a matter of law
for the court.” Whirlpool Corp. v. Dailey Construction, Inc., 110
N.C. App. 468, 471, 429 S.E.2d 748, 751 (1993). “An ambiguity
exists in a contract if the 'language of a contract is fairly and
reasonably susceptible to either of the constructions asserted by
the parties.'” Barrett Kays & Assoc. v. Colonial Building Co., 129
N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998) (citation omitted).
A trial court should resort to extrinsic evidence only when the
terms of the agreement itself are ambiguous. Whirlpool, 110 N.C.
App. at 471, 429 S.E.2d at 751. “When the language of the contract
is clear and unambiguous, construction of the agreement is a matter
of law for the court . . . and the court cannot look beyond the
terms of the contract to determine the intentions of the parties.”
Piedmont Bank and Trust Co. v. Stevenson, 79 N.C. App. 236, 240,
339 S.E.2d 49, 52 (1986).
In finding of fact fifteen, the trial court found that:
Since the Court finds the intent of the
parties to be clear from looking at the
Separation and Property Settlement Agreement,
and since the Court does not find the language
of the Agreement to be ambiguous, the
Plaintiff's proper remedy is a Motion for
Contempt against the Defendant since said
Separation and Property Settlement Agreement
is now an order of this Court.
Although the trial court labels this as a finding of fact, it is
wholly a conclusion of law. Based upon the record before us, wehold the parties' Agreement was not ambiguous in terms of the
parties' remedies in the event of a breach. As stated previously,
paragraph 10 in no way implies that plaintiff's sole remedy for
defendant's breach of paragraph 11(a)(6) is to seek a determination
of alimony. Similarly, paragraph 16 in no way limits either
parties' ability to seek an order compelling specific performance
of only certain clauses of the Agreement. The fact that plaintiff
had the option of electing between several available remedies for
defendant's breach does not cause the terms of the Agreement to be
ambiguous. As such, the terms of the Agreement are not “reasonably
susceptible” to the argument put forth by defendant, and thus the
Agreement is not ambiguous.
Defendant next argues the trial court erred in finding that
the parties' Agreement was an integrated separation and property
settlement agreement. Defendant contends that by allowing
plaintiff the ability to modify the Agreement and seek a
determination on alimony in the event of defendant's breach of
paragraph 11(a)(6), the parties essentially were agreeing to treat
the retired military benefit payments as alimony. As such,
defendant argues that if the Agreement was in fact integrated as
the trial court found, then the trial court would have no power to
readdress the issue of alimony because an integrated agreement is
not modifiable.
“The test for determining if an agreement is an integrated
property settlement is whether the support provisions for the
dependent spouse 'and other provisions for a property divisionbetween the parties constitute reciprocal consideration for each
other.'” Marks v. Marks, 316 N.C. 447, 454-55, 342 S.E.2d 859, 864
(1986) (quoting White v. White, 296 N.C. 661, 666, 252 S.E.2d 698,
701 (1979)). “If support provisions are found to be consideration
for, and inseparable from, property settlement provisions, the
support provisions, even if contained in a court-ordered consent
judgment, are not alimony but instead are merely a part of an
integrated property settlement which is not modifiable by the
courts.” Id. at 455, 342 S.E.2d at 864.
The parties' Agreement specifically states that plaintiff
waives all claims against defendant for alimony, including post-
separation support and permanent alimony, provided that defendant
complies with the requirements of paragraph 11(a)(6). This clause
demonstrates that plaintiff's waiver of support, specifically post-
separation support and permanent alimony, is expressly contingent
upon defendant's satisfaction of the property division, namely, his
retired military benefits. Thus, the parties' Agreement
constitutes an integrated agreement, and the trial court did not
err in finding as such.
However, we hold the trial court's finding that the Agreement
was integrated was unnecessary for purposes of a determination in
the instant action, and the trial court's finding does not affect
the outcome of this case. Plaintiff is not seeking to modify the
Agreement or the amount of the retired military benefit payments
which she receives from defendant; instead, she merely seeks to
enforce the parties' Agreement. The fact that the provisions ofthis Agreement are integrated does not prevent plaintiff from
seeking the remedy sought in the instant action.
Finally, defendant contends the trial court erred in failing
to dismiss plaintiff's motion for contempt, pursuant to Rule
12(b)(6) of our Rules of Civil Procedure. See N.C. Gen. Stat. §
1A-1, Rule 12(b)(6) (2005) (motion seeking to dismiss a claim for
relief based upon a “[f]ailure to state a claim upon which relief
can be granted”). In response to plaintiff's motion seeking to
hold defendant in contempt, defendant filed a reply, which included
a motion to dismiss plaintiff's motion for contempt pursuant to
Rule 12(b)(6).
“When following denial of the motion the court has proceeded
to the merits and the fact-finder has found they support the claim,
whether the initial ruling was technically correct becomes
insignificant.” Concrete Service Corp. v. Investors Group, Inc.,
79 N.C. App. 678, 681, 340 S.E.2d 755, 758 (1986).
[W]here an unsuccessful motion to dismiss is
grounded on an alleged insufficiency of the
facts to state a claim for relief, and the
case thereupon proceeds to judgment on the
merits, the unsuccessful movant may not on an
appeal from the final judgment seek review of
the denial of the motion to dismiss.
Id. at 682-83, 340 S.E.2d at 758-59. In the instant case,
defendant seeks a review of his unsuccessful motion to dismiss
based upon the alleged insufficiency of the facts to state a claim
for relief. The matter in the instant case proceeded to a judgment
on the merits of plaintiff's claim, thus the denial of defendant's
12(b)(6) motion is not reviewable by this Court. In addition, as we already have held the trial court did not
err in finding and concluding that plaintiff had the option of
electing as a remedy a motion for contempt and show cause, in
addition to pursuit of alimony, we hold plaintiff's motion for
contempt did in fact state a valid claim. Thus, the trial court
did not err in denying defendant's motion to dismiss pursuant to
Rule 12(b)(6).
Affirmed.
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).
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