Jones v. Jones

256 S.E.2d 474 (1979)

42 N.C. App. 467

Charles A. JONES v. Mary Winifred JONES.

No. 7818DC876.

Court of Appeals of North Carolina.

July 31, 1979.

*475 Graham, Cooke & Tisdale by E. Norman Graham, Greensboro, for plaintiff-appellee.

Robert S. Hodgman, Greensboro, for defendant-appellant.

*476 CLARK, Judge.

Defendant first contends that the trial court erred in concluding as a matter of law that the Consent Judgment was a complete settlement of all rights between the parties and that the provision for payment of $250 per month for 32 months was an inseparable part of the entire agreement and therefore could not be modified.

As a general rule, a consent judgment cannot be modified or set aside except by agreement of the parties, Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956), since the consent judgment is merely a contract between the parties which has been approved by the court. Davis v. Davis, 213 N.C. 537, 196 S.E. 819 (1938). However, where a court adopts the agreement of the parties as its own determination of the rights of the parties and orders the husband to pay alimony, the consent judgment is a decree of the court and is modifiable and enforceable by contempt. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964). G.S. 50-16.9(a) provides that:

"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. . . ."

For a court to have power to modify a consent judgment, the judgment must be an order of the court, and the order must be one to pay alimony. The first requirement is clearly met in this case since the court made findings of fact, conclusions of law and "ordered, adjudged and decreed" inter alia, that plaintiff pay $250 per month for 32 months as alimony to defendant.

We must therefore determine whether the periodic support payments were alimony within the meaning of G.S. 50-16.9(a) and therefore were subject to modification. Even though denominated as "alimony," periodic support payments to a dependent spouse may not be alimony within the meaning of the statute if the provisions for the property division between the parties constitute reciprocal consideration for each other. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979).

"[A]n agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case (citations omitted). However, if the support provision and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties." Bunn v. Bunn, 262 N.C. 67, 70, 136 S.E.2d 240, 243 (1964). Plaintiff contends that the provisions for support payments to plaintiff and the provisions for transfer of real property to plaintiff are, as a matter of law, reciprocal agreements, and are inseparable; and, therefore, the consent judgment is not subject to modification. The question presented then, is whether the provisions for support and the provisions for property settlement are separable.

In the case sub judice, we note at the outset that the court made no findings of fact upon which alimony could be based. The court did not find that defendant was a dependent spouse nor were there any findings of fact as to any grounds for alimony. See, G.S. 50-16.1(3) and G.S. 50-16.2. Second, the consent judgment provided that the payment of the $250 monthly payments was contingent upon the defendant's conveyance of the marital residence to plaintiff and contingent upon her quitting the premises. Third, the payments were limited to 32 months. Fourth, defendant agreed to convey her interest in a lot at Beech Mountain, North Carolina, without any consideration for that transfer specified.

Paragraph 17 of the Consent Judgment provided that:

"Except as provided in this judgment, each party hereby waives and relinquishes *477 any and all claims against the person or property of the other party and agrees well and truly to abide by this agreement." Paragraph 18 provided, in pertinent part, that in the event of divorce "no claim for alimony, separate maintenance or the like shall be asserted by the defendant in any such action."

In addition, in determining the intent of the parties to a contract or consent judgment, it is appropriate to consider their respective circumstances at the time they consented to the judgment. Although there was no hearing in the District Court, we note that the plaintiff alleged in his complaint that defendant had committed adultery. The defendant did not answer the complaint and then agreed to the Consent Judgment.

We hold that the provision for periodic support payments was an inseparable part of the Consent Judgment and therefore the periodic payments were not subject to modification. The district court properly dismissed the defendant's motion for a modification of the Consent Judgment.

Affirmed.

VAUGHN and CARLTON, JJ., concur.