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Henderson v. Henderson

Filed: February 2, 1982.

ALICE JEAN HENDERSON
v.
GARY M. HENDERSON



Appeal by defendant from Lambeth, Judge. Order entered 15 December 1980 in District Court, New Hanover County. Heard in the Court of Appeals 8 January 1982.

Harry C. Martin, J., wrote the opinion. Gerald Arnold, J., and Hugh A. Wells, J., concurring.

Martin

MARTIN (Harry C.), Judge.

Once again this Court is asked to determine the effects of a consent judgment in a domestic relations setting. It is defendant's contention that because the agreement contemplates a full and final settlement, the terms of which are unmodifiable absent consent of the parties, a fortiori, the judgment is unenforceable by contempt. And, if contract law applies to the agreement, then by

its terms a breach by the plaintiff would excuse performance by the husband. Wheeler v. Wheeler, 299 N.C. 633, 263 S.E.2d 763 (1980).

From our review of the law involving consent judgments in domestic settings, we first note that exceptions have all but engulfed the "general" rule that a husband and wife who have entered into a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of a consent judgment entered thereon. The agreement cannot be modified, ignored, or set aside by the court without the consent of the parties and is enforceable only as an ordinary contract. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964); Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235 (1962); Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956); Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350 (1927). Consent judgments under this category have been distinguished as receiving only the approval or sanction of the court. They serve no useful purpose and have been a source of litigation giving rise to unforeseen consequences in the form of numerous exceptions.

A consent judgment which constitutes nothing more than a contract between the parties made with the approval of the court is not final and binding as to those provisions involving custody or support of minor children. Bunn, supra; Kiger, supra; Holden, supra. A contract-type consent judgment may also be set aside or modified upon a showing of fraud, coercion, or mutual mistake in his procurement or execution. McLeod v. McLeod, 266 N.C. 144, 146 S.E.2d 65 (1966); Kiger, supra. Moreover, there is authority that such a contract-type consent judgment may be enforceable by contempt proceedings for a willful violation of its terms. McLeod, supra. In addition, even if not initially enforceable by contempt, the same result is now obtainable through the vehicle of a decree for specific performance, Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979).

By far the most significant exception to the general rule that the court is without authority to modify or enforce a consent judgment is a finding that the court has adopted the agreement of the parties as its own determination of their respective rights and obligations. The judgment is thus superseded by the adoption of the parties' agreement as an order of the court.

White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979); Bunn, supra; Britt v. Britt, 36 N.C. App. 705, 245 S.E.2d 381 (1978). Upon such a finding, the court has the authority to enforce its judgment through civil contempt proceedings. Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978); Mitchell, supra; Bunn, supra; Elmore v. Elmore, 4 N.C. App. 192, 166 S.E.2d 506 (1969); Dunn v. Dunn, 1 N.C. App. 532, 162 S.E.2d 73 (1968). In addition, a court-adopted judgment is subject to modification within certain limitations. The order must be one to pay alimony; that is, the payments must be denominated alimony or be alimony equivalents rather than, as the result of a property division, constituting reciprocal consideration for a property settlement. White, supra. Changed circumstances must be found to justify modification. Bunn, supra; Britt, supra.

Turning now to the facts of our case, we cannot agree with defendant that the no modification/final settlement provisions of the agreement is the determinative factor in reaching a conclusion that this is a contract-type consent judgment. It is not the intent of the parties, but the intent of the judge which controls. Such is the fate of those attorneys who persist in soliciting the "rubber-stamp" approval of the court on out-of-court settlement agreements. Rarely will the court's judgment not be prefaced by the words "It is Ordered, Adjudged and Decreed," evidencing the court's intent to adopt and order rather than merely "approve" the provisions of agreement. White, supra; Britt, supra; Dunn, supra. Moreover, when a court enters judgment on the facts found by it, it loses its character as a consent judgment. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). In the case sub judice, the court made extensive findings of fact. It is not for this Court to second guess the circumstances under which these findings were made, i.e., that the attorneys drew up the entire agreement and submitted it only for Judge Lambeth's signature. It is apparent from the 15 December 1980 judgment that Judge Lambeth intended to adopt the findings as his own. Moreover, while recognizing that certain provisions relating to property settlement and alimony in the judgment may not be modifiable, "[t]he Court in adopting this Judgment containing this language did not intend nor did it waive any right of the court to enforce a willful violation of any term of this Judgment by civil contempt."

We are thus faced with the question of whether a judgment which has been adopted by the court, but which contains unequivocal language to the effect that it is not subject to modification, may yet be enforced by civil contempt. We answer in the affirmative. In so holding we reject the ipso facto argument that because provisions in a judgment may preclude modification, ...


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