Appeal by plaintiff pursuant to G.S. 7A-30(2) from decision of the Court of Appeals affirming in part and vacating in part order entered by McHugh, Judge, in District Court, Surry County. This case was argued as No. 96 at the 1981 Fall Term.
Britt, Justice. Justice Copeland concurring in part, dissenting in part. Justices Carlton and Meyer join in this dissenting opinion.
We agree in part, but disagree in part, with the decision of the Court of Appeals. While we agree that a new hearing must be conducted by the trial court, we hold that the scope of the hearing must be extended beyond that ordered by the Court of Appeals.
The primary question presented in this appeal is whether the consent order of 6 December 1976 is modifiable.
In Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1965), this court, in an opinion by Justice (later Chief Justice) Sharp, held that there are two types of consent judgments which provide for payment of support to a dependent spouse. One is simply a contract that is approved by the court. The payments specified therein are not technically alimony. This type of consent judgment is enforceable only as an ordinary contract and the parties are not subject to the contempt power of the court for its breach. Consent of both parties is required for modification. Id.
In the second type of consent judgment, the court adopts the agreement of the parties as its own and orders the supporting spouse to pay the amounts specified as alimony. This second type of order is enforceable by the court's contempt powers. Id. Ordinarily it is also modifiable. Bunn, supra.
In the case at hand, were it not for the proviso in the 6 December 1976 consent order that G.S. 50-16.9 would not apply, Bunn no doubt would control this case. Usually, public policy would require that the consent order be modifiable in spite of this proviso.
Our legislature in 1967 codified the principles enunciated in Bunn by enacting G.S. 50-16.9. This statute provides in pertinent part:
(a) An order of a court of this State for alimony or alimony pendente lite, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested . . . .
By enacting this statute, the legislature has clearly expressed that it is the public policy of this state that consent orders to pay alimony are modifiable. In the usual case a proviso in an order purporting to waive applicability of G.S. 50-16.9 would be contrary to this policy and, therefore, without force and effect.
Nevertheless, this court in Bunn and in White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979) recognized an exception to the rule just stated. We quote from the opinion by Justice Exum in White :
Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of the statute and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other.
For purposes of determining whether a consent judgment may be modified under the statute, there is a presumption that the provisions for property division and support payments are separable. Id. The burden of proof rests on the party opposing modification to show that the provisions are not separable. Id.
At the hearing before Judge McHugh, defendant attempted on two occasions to introduce evidence of the negotiations between the parties in an effort to show that the consent order and property settlement were reciprocal agreements. First, on cross-examination of plaintiff, and referring to the proviso on non-modification, defendant's attorney asked: "How do you recall that provision got into that order in the negotiating process?" Plaintiff objected to the question and his objection was sustained by the trial judge. The Court of Appeals found no error in this ruling on the ground that admitting evidence relating to the negotiations would violate the parol evidence rule that any or all parts of a transaction prior to or contemporaneous with a writing intended to record them are superseded and made legally ineffective by the writing. Tomlinson v. Brewer, 18 N.C. App. 696, 197 S.E.2d 901 (1973); 2 Stansbury's N.C. Evidence § 251 (Brandis Rev. 1973).
We disagree with the trial court and the Court of Appeals that the testimony defendant sought to elicit on cross-examination would violate the parol evidence rule.
Generally, evidence of prior and contemporaneous negotiations and agreements are not admissible to vary, add to, or contradict a written instrument. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517 (1960); 2 Stansbury's § 251. However, when the court finds a contract to be ambiguous, evidence of prior negotiations is admissible to show the intent of the parties. Root v. Ins. Co., 272 N.C. 580, 158 S.E.2d 829 (1968). Further, the rule is intended to apply only to final, totally integrated writings; that is, those writings relating to a transaction which are intended to supersede all other agreements regarding that transaction. If the writing supersedes only a part of the transaction, it is a partial integration and other portions of the transaction may be shown by parol evidence. 2 Stansbury's § 252.
Turning to the case at bar, we reiterate that ordinarily the proviso in the 1976 consent order regarding non-modification would be without force or effect. In accord with G.S. 50-16.9, the consent order may be modified unless defendant can show that it was an integral part of the property settlement. White v. White, supra. The intention of the parties regarding the reciprocity of the agreements is not evident from a reading of the consent order. Therefore, evidence of the negotiations and contemporaneous property settlement agreements of the parties are admissible to clarify the uncertainty created when the non-modification provision of the order appears to be void as a matter of law. ...