Appeal by plaintiff from Black, Judge. Order entered 30 December 1980 in District Court, Mecklenburg County. Heard in the Court of Appeals 19 November 1981.
Hill, Judge. Judges Vaughn and Webb concur.
Plaintiff and defendant entered into an agreement on 23 August 1978 which represented "that the parties had settled their differences . . . ." With their consent, the court ordered, inter alia, that plaintiff transfer title to certain real and personal property to defendant and that plaintiff pay to defendant "monthly alimony" which "shall continue . . . until the defendant remarries or dies." Defendant likewise was ordered to convey her interest in certain other personal property to plaintiff. A judgment of absolute divorce was entered for plaintiff against defendant on 24 August 1978.
On 13 October 1980, defendant alleged that plaintiff had failed to abide by the provisions of the August 1978 order and was
then $7,200.00 in arrears on "alimony" payments to defendant. Defendant prayed the court jail plaintiff, in exercise of its civil contempt powers, "until he purges himself of such contempt." A month later, plaintiff moved the court to modify its August 1978 order "for permanent alimony" pursuant to G.S. 50-16.9(c) because of changed circumstances bearing upon defendant's financial needs and plaintiff's reduction in income.
On 24 November 1980, defendant replaced her October motion with allegations that plaintiff had willfully disobeyed the provisions of the August 1978 order "in that he has ceased making any alimony payments, having made no payments for the past five months and being currently in arrears, as of the time this motion is filed, in the amount of $9,000.00." Defendant further alleged that plaintiff "has willfully depressed his income in order to justify a reduction in alimony payments . . . ." Again, defendant prayed the court jail plaintiff for contempt until his obligations are brought current.
At the hearing, defendant withdrew her motion for contempt and moved for judgment respecting the arrearages and plaintiff's motion to modify the August 1978 order. The court found facts and concluded, inter alia, the following:
2. The Order of this Court dated August 23, 1978, is a consent judgment, not subject to modification as to monthly support payments from Plaintiff to Defendant, absent the mutual consent of the parties.
4. The support provisions in the Order of August, 1978, constituted reciprocal consideration with respect to the property settlement of the parties.
Defendant has carried such burden as imposed in White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979) to show by a preponderance of the evidence that the terms of the Order are not ...