in the Court of Appeals 17 October 2018.
by defendant from order entered 19 July 2017 by Judge J.
Rodwell Penry, Jr. in District Court, Davidson County No. 17
Myers, for plaintiff-appellee.
Woodruff Law Firm, P.A., by Jessica S. Bullock and Carolyn J.
Woodruff, for defendant-appellant.
appeals an order enforcing the Separation Agreement he had
entered into with plaintiff. Because the trial court's
findings support its conclusions regarding the enforceability
of the Separation Agreement and its order requiring specific
performance of Husband's alimony obligation, we affirm.
July 2016, plaintiff-wife filed a verified complaint against
defendant-husband alleging that the parties had separated in
February of 2016 and had entered into a Separation and
Property Settlement agreement on 4 March 2016. Wife alleged
Husband had breached the Agreement by failing to timely pay
his alimony obligation and that he had paid only once or
twice since entry of the Agreement. On 25 January 2017,
Husband answered Wife's complaint, denying the
substantive allegations; he counterclaimed for rescission of
the Agreement based upon fraud in the inducement, material
breach of contract by Wife, and attorney fees. Husband
alleged Wife had concealed sexual relationships and failed to
disclose material assets. Husband alleged duress, unfairness,
and unconscionability as to the Agreement. Husband also
alleged that even if the Agreement was valid, his obligation
to pay alimony was terminated by Wife's cohabitation with
another man. Husband claimed Wife had breached the Agreement
by her failure to return twenty items of personal property
which were listed in the counterclaim.
March 2017, Husband filed a motion for summary judgment. The
trial court denied Husband's motion for summary judgement
and heard all pending claims and counterclaims. On 19 July
2017, the trial court entered an order denying summary
judgment; concluding that the Separation Agreement was
enforceable, Husband had breached the Agreement, and Wife had
not breached the Agreement; and ordering specific performance
of Husband's alimony obligation. Husband appealed.
makes three arguments regarding specific performance. Husband
does not challenge the findings of fact as unsupported by the
evidence, but contends that the findings of fact are not
sufficient to support the trial court's conclusions of
law. "The remedy of specific performance rests in the
sound discretion of the trial court and is conclusive on
appeal absent a showing of a palpable abuse of
discretion." Lasecki v. Lasecki, 246 N.C.App.
518, 540, 786 S.E.2d 286, 302 (2016) (citation, quotation
marks, and brackets omitted).
To receive specific performance, the law requires the moving
party to prove that (i) the remedy at law is inadequate, (ii)
the obligor can perform, and (iii) the obligee has performed
her obligations. We now elaborate on each of these
First, the movant must prove the legal remedy is inadequate.
In Moore, our Supreme Court clarified that:
an adequate remedy is not a partial remedy. It is a full and
complete remedy, and one that is accommodated to the wrong
which is to be redressed by it. It is not enough that there
is some remedy at law; it must be as practical and as
efficient to the ends of justice and its prompt
administration as the remedy in equity.
For separation agreements, Moore established that damages
are usually an inadequate remedy because:
the plaintiff must wait until payments have become due and
the obligor has failed to comply. Plaintiff must then file
suit for the amount of accrued arrearage, reduce her claim to
judgment, and, if the defendant fails to satisfy it, secure
satisfaction by execution. As is so often the case, when the
defendant persists in his refusal to comply, the plaintiff
must resort to this remedy repeatedly to secure her rights
under the agreement as the payments become due and the
defendant fails to comply. The expense and delay involved in
this remedy at law is evident.
In this context, even one missed payment can indicate the
remedy at law is inadequate.
Second, the movant must prove the obligor has the ability to
perform. To meet this burden, the movant need not necessarily
present direct evidence of the obligee's current income.
For instance, the movant can meet her burden by showing the
obligee has depressed his income to avoid payment.
Additionally, if the obligor has offered evidence tending to
show that he is unable to fulfill his obligation under a
separation agreement, the trial judge must make findings of
fact concerning the defendant's ability to carry out the
terms of the agreement before ordering specific performance.
Third, the movant must prove she has not breached the terms
of the separation agreement. Still, general contract
principles recognize that immaterial breaches do not
eliminate the possibility of specific performance.
Reeder v. Carter, 226 N.C.App. 270, 275-76, 740
S.E.2d 913, 917-18 (2013) (citations, quotation marks,
ellipses, and brackets omitted). Defendant challenges all
prongs supporting the trial ...