Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1362

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

BARBARA JEANNE BORGERSRODE,
(NOW BARBARA PEARCE)

        Plaintiff,

v .                             Wayne County
                                No. 98 CVD 1015
DELWYN NEAL BORGERSRODE, JR.,

        Defendant.

    Appeal by defendant from order entered 6 July 2006 by Judge Joseph E. Setzer in Wayne County District Court. Heard in the Court of Appeals 23 May 2007.

    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).

*** Converted from WordPerfect ***