Gretchen W. HAYNES
v.
H. Taylor HAYNES.
No. 7926DC477.
Court of Appeals of North Carolina.
March 4, 1980.*785 Bryant, Groves & Essex, P. A., by Alfred S. Bryant, Charlotte, for plaintiff-appellee.
Bailey, Brackett & Brackett, P. A., by Scott T. Pollard, Charlotte, for defendant-appellant.
PARKER, Judge.
G.S. 50-11 provides in pertinent part:
Effects of absolute divorce.(a) After a judgment of divorce from the bonds of matrimony, all rights arising out of the *786 marriage shall cease and determine except as hereinafter set out. . . .
* * * * * *
(c) Except in case of divorce obtained with personal service on the defendant spouse, either within or without the State, upon the grounds of the adultery of the dependent spouse and except in case of divorce obtained by the dependent spouse in an action initiated by such spouse on the ground of separation for the statutory period a decree of absolute divorce shall not impair or destroy the right of a spouse to receive alimony and other rights provided for such spouse under any judgment or decree of a court rendered before or at the time of the rendering of the judgment for absolute divorce.
One effect of G.S. 50-11(a) is to terminate the right of a dependent spouse to support upon divorce. However, G.S. 50-11(c) preserves the dependent spouse's right to support where a judgment or decree for alimony was entered before or at the time of the rendering of the divorce judgment unless one of two specified events has occurred: (1) The supporting spouse has obtained a divorce with personal service on the grounds of adultery; or (2) the dependent spouse has both initiated and obtained a divorce on the ground of one year's separation. See, McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976). If either of these two events occurs, then G.S. 50-11(c) is inapplicable and the general rule of G.S. 50-11 (a) governs.
In the present case plaintiff-wife brought an action against defendant-husband for absolute divorce on the ground of one year's separation and obtained the relief sought on 29 December 1976. Thus, G.S. 50-11(c) does not apply, and determination of the question whether defendant-husband remains liable for the monthly payments provided in the consent judgment of 28 June 1976 depends upon whether plaintiff-wife's rights to those payments "aris[e] out of the marriage" within the meaning of G.S. 50-11(a).
The consent judgment entered on 28 June 1976 which was signed by both parties and their counsel expressly rescinded an existing separation agreement (with the exception of certain paragraphs "not inconsistent with the terms of this Judgment") and recited that the provisions set forth with regard to their property rights and other marital rights and obligations were agreed to by the parties and "should be adopted as the judgment of the court." The portions of the consent judgment relevant to the question presented on this appeal are the provisions requiring defendant-husband to pay to plaintiff-wife the sum of $350.00 for her support and maintenance until her death or remarriage in consideration of plaintiff-wife's relinquishment of any right to apply to the court to increase the amount and the provision that either party might apply for and obtain an absolute uncontested divorce "at such time hereafter as is allowed by law."
Our courts have recognized the validity of a separation agreement by which the husband agrees to support his wife even after a decree of divorce has been entered which, under G.S. 50-11, would otherwise terminate his obligation. Hamilton v. Hamilton, 242 N.C. 715, 89 S.E.2d 417 (1955); McKnight v. McKnight, 25 N.C.App. 246, 212 S.E.2d 902, cert. denied, 287 N.C. 466, 215 S.E.2d 624 (1975). In such a case, the wife's right to continued support does not arise out of the marriage, but arises out of contract and survives the judgment of absolute divorce. Defendant-husband concedes that a separation agreement may so provide, but contends that where the agreement is embodied in a judgment, G.S. 50-11 automatically terminates the continued support obligation as a matter of law. We do not agree.
A consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and its provisions cannot be set aside without consent of the parties except for fraud or mistake. Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965); Bland v. Bland, 21 N.C.App. 192, 203 S.E.2d 639 (1974). The judgment should be construed in the same manner as *787 a contract to ascertain the intent of the parties. Webster v. Webster, 213 N.C. 135, 195 S.E. 362 (1938). "To do so, the entire agreement must be examined with an understanding of the result to be accomplished and the situation of the parties at the moment the contract is made." Yount v. Lowe, 288 N.C. 90, 96, 215 S.E.2d 563, 567 (1975). In applying these principles to the present case it is apparent that in consenting to the judgment entered in June 1976, the parties intended a complete resolution of their respective rights and obligations. As part of that resolution they mutually agreed that either party could apply for and obtain an uncontested divorce and that plaintiff-wife's rights to payments for her support would cease only upon her death or remarriage. Reading these two provisions of the judgment together, we conclude that the parties intended that the payments would continue until the occurrence of one of the events, notwithstanding the provisions of G.S. 50.11. This case is distinguishable from those previously decided by this Court in which the supporting spouse's obligation of support provided for by consent judgment was held terminated by operation of law upon the occurrence of certain events. For example, in Bland v. Bland, supra, the consent judgment in question specifically stated that the husband was to pay support "until he is relieved therefrom by operation of law." This Court, applying the legal principle that the duty to support terminates upon the death of the supporting spouse, held that the husband's estate was not liable for further support payments, the rationale of the decision being that the parties had so agreed. Here, however, the parties specified the contingencies which would terminate plaintiff-wife's rights to receive support payments. Insofar as the consent judgment in the present case imposed a duty of support on defendant-husband beyond that imposed by the common law or by statute, plaintiff-wife's rights did not arise out of the marriage, but out of contract, see Merritt v. Merritt, 237 N.C. 271, 74 S.E.2d 529 (1953); Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865 (1953). Defendant-husband, by his signature, consented to the provision that either he or plaintiff-wife, might obtain a divorce "at such time hereafter as is allowed by law," and he may not justly contend now that plaintiff-wife, having done so, has forfeited her contractual right to continued payments.
We are, of course, aware of the decisions in which our Supreme Court has drawn a distinction between those consent judgments in which the court merely approves or sanctions the payments and those in which the court adjudicates the right to and the amount of payment, Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964), the former not being enforceable by contempt because they are pure contracts, but the latter being so enforceable because they are judgments. However, we do not consider that distinction determinative of the question whether defendant-husband's duty to make support payments to plaintiff-wife until her death or remarriage arises out of marriage or out of contract for the purposes of determining the effect of the divorce obtained by plaintiff-wife. A separation agreement not incorporated into a judgment may provide contractual rights to continued support, Hamilton v. Hamilton, supra, and those contractual rights to payments may be specifically enforced, Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979). The fact that a failure to comply with a decree for specific performance of the support provisions of a separation agreement might be punishable by contempt renders the separation agreement no less a contract of the parties. Similarly, the fact that a consent judgment incorporating an agreement of the husband to provide support may be enforceable by contempt proceedings renders it no less a contract. Thus, plaintiff-wife's right to receive monthly payments until her death or remarriage in the present case does not become a right "arising out of the marriage" within the meaning of G.S. 50-11 merely because that right is provided in a judgment of court which may be enforceable by contempt. Because G.S. 50-11(a) only terminates those rights "rising out of the marriage," plaintiff-wife's initiating and obtaining a divorce *788 on the grounds of one-year's separation had no effect upon her contractual right to receive support payments until her death or remarriage, and defendant-husband remains obligated until the occurrence of one of those events. The order of the trial court denying defendant-husband's motion to terminate his obligation to pay to the plaintiff permanent alimony is, therefore,
Affirmed.
MORRIS, C. J., and HILL, J., concur.