Burakowski v. Burakowski

NO. COA13-986

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

SUZIE JANE BURAKOWSKI,
Plaintiff,

v. Gates County
No. 10-CVD-37
STEVEN ALLEN BURAKOWSKI,
Defendant.

Appeal by defendant from contempt order entered 25 March

2013 by Judge Eula E. Reid in District Court, Gates County.

Heard in the Court of Appeals 9 January 2014.

Mitchell S. McLean, for plaintiff-appellee.

Davis Law Office, by Mary Elizabeth Davis, for defendant-
appellant.

STROUD, Judge.

Defendant appeals order allowing plaintiff’s motion for

contempt, awarding plaintiff certain annuity payments, and

denying defendant’s motion for sanctions. For the following

reasons, we reverse and remand in part.

I. Background

In 2008, plaintiff and defendant were divorced in Kentucky

by a decree of dissolution of marriage which incorporated a

separation agreement. The separation agreement, entered on 8
 -2-
October 2008, included a provision regarding the division of

defendant’s retirement benefits as follows:

Parties agree that wife is entitled to one
half of the husband’s retirement account,
which specifically is TSP and FERS accounts,
as of the date of the entrance of the final
decree of dissolution in this case. Wife
shall execute any orders as directed by the
Court to effectuate said division including
but not limited to any QDROs.1

Thereafter, on 19 November 2008, the parties entered into an

Amended Separation Agreement (“Amended Agreement”) which was

also incorporated into the decree of dissolution of marriage.

The Amended Agreement further addressed defendant’s retirement

benefits as follows:

The parties agree that wife is entitled
to one half (½) of husband’s Retirement
Accounts, more specifically his TSP account
and FERS account. His TSP account shall be
divided, with wife to receive ½ the value
thereof as of the date of the entrance of
the Final Decree of Dissolution in this
case. Wife shall execute any orders as
directed by the Court to effectuate said
division, including but not limited to any
Qualified Domestic Relations Order (QDRO).
Husband’s FERS account shall be divided,
with wife to receive ½ of the amount in said
account as of the date of the entrance of

1
The original agreement is not in our record but this provision
was read out loud at a hearing by defendant’s attorney and
plaintiff testified that this was what the separation agreement
stated. There is no dispute about this provision, which was
later amended.
 -3-
the Final Decree in this case. Both parties
understand that wife will not receive
payment of this amount until husband
retires. Wife shall execute any Orders
necessary to effectuate division of the
same. Wife shall also receive ½ of the
supplemental annuity to be received by
husband from the date of his retirement or
when he reaches age 57, whichever shall come
earlier[.]

(Emphasis added.) Thus, the Amended Agreement provided

additional details as to the portions of the defendant’s

retirement benefits that plaintiff would receive and how the

distributions would be accomplished.

In 2010, a North Carolina trial court entered a consent

order which domesticated the Kentucky modified decree of

dissolution of marriage making it “enforceable as a valid Order

of the State of North Carolina, so the terms of the Amended

Agreement became enforceable as a court order. Later in 20102,

plaintiff filed a verified “MOTION IN THE CAUSE AND FOR

CONTEMPT” (“2010 Motion”) seeking to hold defendant in contempt

under the terms of the Amended Agreement regarding her health

2
Both parties state that plaintiff’s motion was made in 2011;
however, the file stamp is illegible and the date written in by
plaintiff’s attorney indicates the motion was made in 2010. As
such, we will refer to this motion as the 2010 Motion noting
that whether it was filed in 2010 or 2011 is irrelevant to the
issues on appeal. There is no doubt that it preceded the motion
and order at issue here.
 -4-
insurance benefits, which are not at issue in this appeal, and

also seeking “clarification” of the provisions of the Amended

Agreement as to defendant’s retirement benefits. Plaintiff

alleged:

7. That the Amended Separation
Agreement provided for the plaintiff to
receive one half of the defendant’s FERS
retirement benefits, upon his retirement. A
problem has arisen regarding the Office Of
Personal Management’s interpretation of the
provision of the Amended Separation
Agreement that divides defendant’s FERS
retirement annuity. The OPM has interpreted
the wording of the Amended Separation
Agreement contrary to the clear intent of
the parties, because the term “retirement
account” was used rather than the term
“retirement annuity.” The intent of the
parties was clearly for the plaintiff to
receive one half of the monthly annuity
payments that defendant is entitled to
receive, pursuant to his FERS retirement
benefit/annuity. However, because the
Amended Separation Agreement did not us[e]
the specific word “annuity”, OPM has
construed the Amended Separation Agreement
as only giving her a one half interest in
the set contributions that were made to the
FERS account after the date of the October
10, 2008 Decree, which was only for a one
year period, as indicated in document
attached hereto as “Exhibit 2”.

8. That the court should clarify the
wording of the Amended Separation Agreement
to conform with the clear intentions of the
parties and should specify that the OPM
shall divide and apportion the defendant’s
monthly FERS retirement annuity payment so
that the plaintiff shall begin receiving one
 -5-
half of these monthly annuity payments. The
court should also require that the defendant
reimburse the plaintiff for the plaintiff’s
one half share of each monthly FERS annuity
payment that she has not received since the
date the defendant retired and began
receiving his FERS annuity monthly payment.

. . . .

11. That the plaintiff has requested
and demanded of the defendant that he comply
with the health insurance provisions of the
Amended Separation Agreement and has
requested and demanded of the defendant that
he cooperate in amending the prior Amended
Separation Agreement to specify that
plaintiff is entitled to receive one half of
the defendant’s monthly FERS retirement
annuity. However, the defendant has failed
and refused to abide or comply with these
requests and demands, which has required the
plaintiff to initiate this Motion to enforce
the defendant’s compliance with the health
insurance provision and to clarify the FERS
annuity provision, to conform with the clear
intent of the parties.

Plaintiff then specifically requested that the trial court

“clarif[y]” the Amended Agreement to provide specifically that

she would receive one half of the defendant’s monthly “FERS

retirement annuity payment” and that OPM be ordered to pay this

directly to plaintiff:

4. That the retirement provision of
the Amended Separation Agreement be
clarified to specify that the plaintiff is
entitled to receive one half of the
defendant’s monthly FERS retirement annuity
payment, and to order the OPM to begin
 -6-
directing one half of each monthly annuity
payment to the plaintiff. Also, the
defendant be ordered to reimburse the
plaintiff for the plaintiff’s one half share
of each monthly FERS retirement annuity
payment that the defendant has received
since his retirement.

In other words, because the Amended Agreement referred

specifically only to the defendant’s “FERS account” and

“supplemental annuity[,]” the OPM had taken the position that

the Amended Agreement did not permit it to pay the basic annuity

benefits to plaintiff. Plaintiff testified at the hearing on

her 2010 Motion that defendant had already retired and one-half

of his TSP or Thrift Savings Plan, had been paid to her in the

lump sum of $119,030.00, and an additional $7,400.00 had been

paid over the course of six months as her one-half interest from

the FERS account.3 However, plaintiff was not being paid a one-

half share of the basic annuity, so she requested the trial

court to “clarif[y]” that the parties actually meant for the

term “FERS account” to include the basic annuity so that the OPM

3
The parties’ use of informal terminology to identify the TSP
retirement account, FERS retirement account, and the two FERS
annuities, in the Amended Agreement, before the trial court, and
in their briefs before this Court has made it challenging to
determine at times exactly which asset the parties are referring
to, but ultimately the accounts and annuities as identified in
this opinion are consistent with those found by the trial court,
and these particular findings are not challenged.
 -7-
would pay one-half of the basic annuity benefits to her.

Plaintiff also requested that defendant be required to pay to

her the arrearages of her one-half of the basic annuity payments

that had accrued up to that time.

In 2011, the trial court entered an order (“2011 Order”)

after a hearing on plaintiff’s 2010 Motion and found:

11. That the defendant currently
receives a gross regular monthly FERS
annuity of $2,327.00. He also receives an
additional FERS supplemental annuity of
$915.00 per month. The defendant is also
gainfully employed at Fort Lee and testified
that he earns $80,000.00 per year from his
employment, and began his employment in
June, 2010.

. . . .

22. That the plaintiff contends that
the Amended Separation Agreement should be
modified and clarified to require the
defendant to pay her ½ of his FERS regular
retirement benefits. However, the court
deems that the Amended Separation Agreement
is unambiguous in regards to the plaintiff’s
right concerning the defendant’s retirement
benefits and will not modify or supplement
the provisions contained therein.

23. That the specific wording of the
Amended Separation Agreement, as agreed to
and admitted by each party in open court,
provides that the plaintiff is entitled to
receive ½ of the defendant’s monthly FERS
supplemental annuity payments, less ½ of the
taxes.

24. That the defendant started
 -8-
receiving his monthly FERS supplemental
annuity payments on March 1, 2010.

25. That the defendant currently
receives the sum of $915.00 per month as
FERS supplemental annuity payments. The
amount of taxes are deducted is $269.60 per
month. Therefore, the plaintiff’s net ½
share of the current monthly supplemental
annuity payment is $322.70. For the 13
months that the defendant received this
supplemental annuity payment up to the March
25, 2011 court date, the total net payment
due to the plaintiff from the defendant, for
her share of the supplemental annuity
payments, is $4,195.10.

26. That the total amount of the
plaintiff’s share of the defendant’s monthly
supplemental annuity payments, as of July
31, 2011, will be $5,485.90.

27. That the defendant should be
ordered to directly pay the plaintiff, each
month, her ½ share of his supplemental
annuity payment, less taxes, the current net
monthly amount due plaintiff being $322.70,
by the 5th day of each month, beginning
August 5, 2011.

28. That the defendant has the present
financial ability to pay the plaintiff the
reimbursement/arrearage that he owes her for
her ½ share of his supplemental annuity
payments, dating back to March 1, 2010. The
amount of the arrearage/reimbursement owed
by the defendant to the plaintiff, through
July 31, 2011, is $5,485.90. The defendant
has the present financial ability to pay to
the plaintiff, provided that he is allowed
to pay this reimbursement/arrearage amount
in 6 equal monthly installments, with the
first installment being due and payable by
September 5, 2011.
 -9-

(Emphasis added.)

The trial court concluded that plaintiff would receive one-

half of the supplemental annuity payments, past and future:

16. That the plaintiff’s share of the
defendant’s monthly FERS supplemental
annuity payments that he has received since
March 1, 2010, through the March 25, 2011
court date, is $4,195.10. The total amount
of plaintiff’s share of the defendant’s
monthly supplemental annuity payments
through July 31, 2011, will be $5,485.90.

17. That the defendant has the present
financial ability to reimburse the plaintiff
for her ½ share of the supplemental annuity
payments defendant has received since March
1, 2010, provided that he is allowed to pay
this reimbursement/arrearage total in 6
equal installments, payable monthly, with
the first installment payment being due
September 5, 2011.

(Emphasis added.)

The trial court thus ordered payment of the supplemental

annuity benefits, including arrearages as well as future

payments:

9. . . . The total supplemental
annuity reimbursement that the defendant
owes the plaintiff, through July 31, 2011,
is $5,485.90. The total
arrearage/reimbursement that the defendant
owes the plaintiff, through July 31, 2011,
is $13,041.56. Defendant shall pay
plaintiff the full sum of $13,041.56 in six
monthly installments, beginning with a first
 -10-
monthly installment due September 5, 2011,
in the amount of $2,173.59. The defendant
shall make an equal payment of $2,173.59 to
the plaintiff on October 5, 2011, November
5, 2011, December 5, 2011, and January 5,
2012. The defendant shall make a final
arrearage installment payment of $2,173.61
to plaintiff on February 5, 2012.

10. That willful violation of the
provisions of this Order shall be punishable
by the contempt of court sanctions of this
court.

(Emphasis added.) In sum, the 2011 Order did not “clarif[y]” the

Amended Agreement as plaintiff requested nor did it order

defendant to pay any basic annuity payments, but instead only

ordered payments as to the “supplemental annuity[.]” (Emphasis

added.) The record does not indicate that either party appealed

from this order.

In 2012, plaintiff filed a verified “MOTION FOR CONTEMPT”

(“2012 Motion”) which requested that defendant be held in

contempt for failure to pay her one-half of his basic annuity

payments under the Amended Agreement, alleging:

6. That the defendant should be found
to be in willful contempt of court for his
willful violation of the provisions of the
aforesaid Amended Separation Agreement,
which has been incorporated into the Divorce
Decree entered in this cause, in that:
A. The Amended Separation Agreement
provided for the plaintiff to receive
one half of the defendant’s FERS
retirement account, upon his
 -11-
retirement.
B. The defendant’s FERS retirement
account encompasses the retirement
annuity that provides defendant with
monthly annuity payments.
C. The intent of the parties was
clearly for the plaintiff to receive
one half of the monthly annuity
payments that defendant is entitled to
receive, pursuant to his FERS
retirement account.
D. The defendant has willfully failed
and refused to pay plaintiff one half
of his monthly retirement annuity
payment since his retirement, as
required by the aforesaid Amended
Separation Agreement, despite demand
from the plaintiff.
E. The only portion of the
defendant’s FERS retirement account
that plaintiff has received is one half
of the direct contributions that were
made by the defendant into his FERS
account after the date of the October
10, 2008 Decree, and prior to the
retirement date of the defendant.
F. The specific wording of the
Amended Separation Agreement, that was
incorporated into the October 10, 2008
Decree, provided for the plaintiff to
receive one half of the defendant’s
“retirement account”, not just one half
of the direct contributions made
between October 10, 2008 and the date
of the defendant’s retirement. The
said Amended Separation Agreement, as
incorporated into the Decree, required
the defendant to provide plaintiff with
one half of his full “retirement
account” upon retirement, which
emcompasses and includes the monthly
FERS retirement annuity payment
received by the defendant.
G. The purposes of the Amended
 -12-
Separation Agreement can still be
accomplished by the court entering an
Order finding the defendant to be in
willful contempt of court and imposing
such sanctions against the defendant as
deemed appropriate.
H. An appropriate sanction against
the defendant for his willful violation
of the provisions of the Amended
Separation Agreement, due to his
willful failure and refusal to provide
the plaintiff with one half of his FERS
retirement account since his date of
retirement, would be for the court to
specifically order the defendant to do
the following:
1. Order the defendant to
reimburse the plaintiff for
plaintiff’s one half share of each
monthly FERS annuity payment that
he has received since the date the
defendant retired and began
receiving his FERS annuity monthly
payment.
2. Order the defendant to
directly forward the plaintiff her
one half share of each prospective
monthly FERS annuity payment that
he receives.
3. Order the defendant to pay
the plaintiff an award of
reasonable attorney fees to
reimburse her for her costs and
attorney fees incurred in
connection with the enforcement of
the retirement account provisions
of the aforesaid Amended
Separation Agreement and Decree.

7. That the Amended Separation
Agreement had a “default” provision that
required that in the event either party
defaults in or breaches any of his or her
respective obligations and duties as
 -13-
contained in the Agreement, the defaulting
or breaching party shall be responsible for
and pay the injured party, in addition to
such damages as any court may award, all of
his or her attorney fees, court costs and
other related expenses incurred to enforce
the provisions contained in the Amended
Separation Agreement against the defaulting
party.

8. That the defendant has defaulted
on his obligations pursuant to the Amended
Separation Agreement by his willful failure
to abide and comply with the retirement
account provisions of said Agreement, by his
failure and refusal to separate and
apportion the plaintiff’s one half of his
monthly FERS retirement annuity payment to
plaintiff. Therefore, the defendant should
be required to reimburse the plaintiff for
all of her attorney fees, court costs and
other related expenses connected with this
proceeding.

9. That the plaintiff has requested
and demanded of the defendant that he comply
with the retirement account provisions of
the Amended Separation Agreement and has
requested and demanded of the defendant that
he provide her with her one half share of
his monthly FERS retirement annuity payment.
However, the defendant has failed and
refused to abide or comply with these
requests and demands, which has required
plaintiff to initiate this Motion to enforce
the defendant’s compliance with the
retirement account provisions and to secure
plaintiff’s receipt of her one half share of
the defendant’s monthly FERS retirement
annuity payment, retroactive to the date of
the defendant’s retirement.

Plaintiff requested that defendant be held
in contempt “for his willful violation of
 -14-
the provisions of the aforesaid Amended
Separation Agreement” and that he be
requiredin order to purge himself of
contempt, to do the following:
A. Reimburse the plaintiff for her
one half share of each monthly FERS
retirement annuity payment that the
defendant has received since his date
of retirement.
B. The defendant be required to
henceforth directly pay plaintiff her
one half share of each monthly FERS
retirement annuity payment that he
receives.
C. The defendant be required, in
order to purge himself of contempt, to
pay the plaintiff an award of
reasonable attorney fees to defray her
costs and attorney fees incurred in
connection with this Motion, consistent
with the “default” provision of the
Amended Separation Agreement, as
incorporated into the said Decree.

Thus, plaintiff again requested one half of defendant’s basic

annuity payment, based on the provisions of the Amended

Agreement. Plaintiff’s motion was not based upon the 2011

Order, nor did it mention this order in which the trial court

had already denied this same substantive relief.

Defendant responded to plaintiff’s 2012 Motion with “NOTICE

AND MOTION FOR RULE 11 SANCTIONS” arguing that

Plaintiff’s current Motion for Contempt is
barred by collateral estoppel and/or Res
Judicata, said matter having been subject to
previous litigation . . . [in] 2011. The
matters raised in Plaintiff’s Motion are
substantially identical to matters ruled
 -15-
upon by the . . . [trial court’s 2011
Order]. Defendant avers that Plaintiff
should be responsible for his attorneys fees
in defending against her currently pending
Motion.
WHEREFORE, Defendant respectfully
requests that this Court dismiss with
prejudice Plaintiff’s Motion and the Order
to Show Cause set for . . . 2012.

On 25 March 2013, the trial court entered a

“CONTEMPT ORDER” (“2013 Order”) finding defendant in willful

contempt based on his failure to comply with the Amended

Separation Agreement, for the following reasons:

A. The Amended Separation Agreement
provided for the plaintiff to receive
one half of the defendant’s FERS
retirement accounts, upon his
retirement.
B. Based upon the testimony of the
plaintiff and defendant at trial, it
was clear understanding of each party
that the FERS accounts included the
defendant’s basic annuity payments as
well as the supplemental annuity
payments.
C. Based upon the Amended Separation
Agreement and the understanding of each
party, as testified to at trial, the
plaintiff was to receive from the
defendant one half of the monthly FERS
basic annuity payments that the
defendant received.
D. Despite the provisions of the
Amended Separation Agreement, and the
understanding of the defendant that the
plaintiff was to receive one half of
his monthly FERS basic annuity, he has
failed and refused to pay plaintiff one
half of his monthly FERS basic annuity
 -16-
payment since his retirement, despite
demand from the plaintiff that he do
so.
E. The plaintiff has received one
half of the direct contributions that
were made by the defendant into his
FERS accounts after the date of the
October 10, 2008 Decree, and prior to
the retirement date of the defendant,
and one half of the FERS supplemental
annuity, per prior Order of this court
entered March 25, 2011[.]
F. The specific wording of the
Amended Separation Agreement, that was
incorporated into the October 10, 2008
Decree, provided for the plaintiff to
receive one half of the defendant’s
“retirement accounts”, not just one
half of the direct contributions made
between October 10, 2008 and the date
of the defendant’s retirement. The
said Amended Separation Agreement, as
incorporated into the Decree, required
the defendant to provide plaintiff with
one half of his full “retirement
accounts” upon retirement, which
encompasses and includes the monthly
FERS basic annuity payments received by
the defendant.
G. The defendant began receiving his
monthly FERS basic annuity payments on
March 1, 2010 and has continued to
receive these monthly payments.
Plaintiff was entitled to receive one
half of the defendant’s monthly FERS
basic annuity payments from the March
1, 2010 date that the defendant began
receiving these payments; however, the
defendant has not provided the
plaintiff with any portion of the
monthly FERS basic annuity payments
that he has received since March 1,
2010.
H. The defendant has received a gross
 -17-
monthly basic FERS annuity payment of
$2,327.00. The plaintiff is entitled
to one half of each monthly payment,
related back to March 1, 2010, when the
defendant began receiving his monthly
FERS basic annuity payments.
I. The defendant willfully failed and
refused to abide by the terms of the
Amended Separation Agreement by failing
and refusing to pay the plaintiff her
one half portion of his monthly FERS
basic annuity payments that he has
received since March 1, 2010.
J. The plaintiff has requested and
demanded of the defendant that he
comply with the retirement account
provision of the Amended Separation
Agreement and has requested and
demanded of the defendant that he
provide her with her one half share of
his monthly FERS basic retirement
annuity payments. However, despite
these requests, and the defendant’s
knowledge that the monthly FERS basic
annuity payments were included in, and
a part of, his FERS accounts that the
plaintiff was entitled to receive one
half of, he failed and refused to pay
her any portion of the monthly basic
annuity payments since March 1, 2010,
thereby requiring the plaintiff to
initiate this motion to enforce the
defendant’s compliance.
K. The purpose of the Amended
Separation Agreement can still be
accomplished by the court entering an
Order finding the defendant to be in
willful contempt of court and imposing
the sanctions against the defendant as
set forth in the Decree of this Order.

9. That the defendant has the current
financial ability to pay the plaintiff one
half of his monthly FERS basic annuity
 -18-
payments and has the present financial
ability to reimburse the plaintiff for her
share of the past due basic annuity payments
that he failed and refused to pay her since
March 1, 2010, based upon the repayment
schedule as set forth in the Decree of this
Order.

10. That the defendant receives a
gross monthly basic FERS annuity payment of
$2,327.00. He also receives an additional
monthly FERS supplemental annuity payment of
$915.00, but of this amount he pays $322.70
per month to the plaintiff, pursuant to the
prior Order of this court. The defendant is
also gainfully employed and earns an annual
income of approximately $80,000.00 per year.

11. That an appropriate sanction
against the defendant for his willful
violation of the provisions of the Amended
Separation Agreement, due to his willful
failure and refusal to pay the plaintiff her
one half share of his monthly FERS basic
annuity since the date of his retirement,
would be for the defendant to directly pay
the plaintiff for her one half share of each
prospective monthly FERS basic annuity
payment that he receives, within five days
of the date that he receives each monthly
payment.

12. That an additional appropriate
sanction against the defendant for his
willful violation of the provisions of the
Amended Separation Agreement would be for
the court to order the defendant to
reimburse the plaintiff for her one half
share of each monthly FERS basic annuity
payment that he has received since the
defendant began receiving his payments on
March 1, 2010, pursuant to the repayment
schedule as set forth in the Decree of this
Order.
 -19-

13. That the defendant has received
his $2,327.00 per month FERS basic annuity
payment since March 1, 2010. The
plaintiff’s one half share of each of these
monthly payments is $1,163.50. As of April
30, 2013, the defendant will owe the
plaintiff an arrearage of $45,376.50 for the
plaintiff’s one half share of the
defendant’s monthly FERS basic annuity
payments since March 1, 2010.

14. That as a sanction against the
defendant for his willful violation of the
provisions of the Amended Separation
Agreement, he should be required to directly
pay the plaintiff the sum of $500.00 per
month, beginning May 1, 2013, to be applied
toward the defendant’s arrearage, in
addition to the $1,163.50 that the defendant
is to pay to the plaintiff each month for
her one half share of the ongoing monthly
FERS basic annuity payments.

15. That the defendant has the present
financial ability to pay the plaintiff the
sum of $500.00 per month to be applied
toward his aforesaid arrearage owed to the
plaintiff, and has the present financial
ability to pay the plaintiff the sum of
$1,163.50 per month, as plaintiff’s one half
share of his ongoing monthly FERS basic
annuity payments.

16. That the plaintiff has waived and
abandoned her claim against the defendant
for attorney fees in this proceeding.

17. That the defendant’s Motion For
Sanctions should be denied in that the prior
Order of this court did not serve as res
judicata for the issues determined in this
proceeding. The issue of whether or not the
plaintiff is entitled to receive one half of
 -20-
the defendant’s monthly FERS basic annuity
was not fully litigated and decided at the
prior hearing in this cause on March 25,
2011.

The trial court concluded:

3. That the defendant is in willful
contempt of court for his willful violation
of the provisions of the aforesaid Amended
Separation Agreement, which has been
incorporated into the Divorce Decree entered
in this cause, due to his willful failure to
pay the plaintiff her one half share of his
monthly FERS basic annuity payments that he
has received since March 1, 2010.

4. That the purposes of the Amended
Separation Agreement can still be
accomplished by the court entering an Order
finding the litigated or decided as a result
of the court’s prior ruling in the hearing
in this matter on March 25, 2011.

The trial court ordered:

1. That the defendant is in willful
contempt of court for his willful
noncompliance with the provisions of the
Amended Separation Agreement, due to his
willful failure to pay the plaintiff her one
half share of his monthly FERS basic annuity
payments that he has received since March 1,
2010.

2. That as a sanction against the
defendant, in order for him to purge himself
of contempt, he shall pay directly to the
plaintiff one half of his gross monthly FERS
basic annuity payments within five days of
the date that he receives each payment. The
defendant’s initial payment to the plaintiff
shall be paid on or before five days from
the date he receives his FERS basic annuity
 -21-
payment for May, 2013, and he shall continue
to pay the plaintiff her one half share of
each basic annuity payment within five days
of the date he receives each monthly payment
thereafter.

3. That the current monthly amount
that the defendant shall pay the plaintiff,
as the plaintiff’s one half share of
defendant’s monthly FERS basic annuity,
shall be $1,163.50. However, said monthly
payment shall increase or decrease
accordingly due to any increases or
decreases in the monthly FERS basic annuity
payments that the defendant receives.

4. That as a further sanction against
the defendant, in order for him to purge
himself of contempt, he shall pay the
plaintiff the sum of $45,376.50, which
represents the plaintiff’s one half share of
the defendant’s monthly FERS basic annuity
payments that he has received since March 1,
2010 through April 30, 2013. The defendant
shall pay this arrearage directly to the
plaintiff at the rate of $500.00 per month,
until the full arrearage has been paid. The
initial $500.00 monthly arrearage payment
shall be due and payable from the defendant
to the plaintiff on or before May 1, 2013
with an equal $500.00 arrearage payment
being due on or before the first day of each
month thereafter, until the full $45,376.50
arrearage has been paid.

5. That the plaintiff’s claim against
the defendant for attorney fees in this
proceeding has been waived and abandoned.

6. That the defendant’s Motion For
Sanctions against the plaintiff is denied.

7. That willful violation of the
provisions of this Order shall be punishable
 -22-
by the contempt of court sanctions of this
court.

8. That this cause is retained by the
court for such other and further Orders as
may be deemed just and proper.

(Emphasis added.) Thus, based upon the Amended Agreement, the

trial court ordered defendant be held in contempt for failing to

pay plaintiff one-half of payments received from the basic

annuity since his retirement, ordered defendant to begin paying

plaintiff one-half of his basic annuity payments, ordered

defendant to pay arrearages based on his previous failure to pay

plaintiff the basic annuity payment, and denied defendant’s

motion for sanctions.4 Defendant appeals the 2013 Order.

II. 2013 Order

Both plaintiff and defendant have inaccurately labeled

various requests and claims both before the trial court and this

Court. For example, plaintiff requested that the trial court

“clarify the wording of the” Amended Agreement, although her

motion would more properly be called a request for reformation,

see Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C.

4
In denying defendant’s motion for sanctions the trial court
also found that “[t]he issue of whether or not the plaintiff is
entitled to receive one half of the defendant’s monthly FERS
basic annuity was not fully litigated and decided at the prior
hearing in this cause on March 25, 2011.”
 -23-
App. 795, 798, 487 S.E.2d 157, 159 (1997) (“Reformation is a

well-established equitable remedy used to reframe written

instruments where, through mutual mistake or the unilateral

mistake of one party induced by the fraud of the other, the

written instrument fails to embody the parties’ actual, original

agreement. . . . Negligence on the part of one party which

induces the mistake does not preclude a finding of mutual

mistake. In other words, the fact that the mistake arises

because the party who is seeking the reformation supplied the

incorrect information does not make the mistake unilateral.”

(citations, quotation marks, and brackets omitted)), and

defendant sought a form of relief that is not even available

when he requested a dismissal of a motion, rather than a denial

of said motion. See generally N.C. Gen. Stat. § 1A-1, Rule

12(b) (2011) (regarding the dismissal of claims, not other

motions). Yet it is clear that both parties knew and understood

the substantive requests or challenges the other was making and

both parties have addressed these issues, so we will simply

address the issues on appeal in substance, rather than

attempting to use the titles which the parties proposed in their

arguments both before the trial court and this Court. See

generally In re Testamentary Tr. of Charnock, 158 N.C. App. 35,
 -24-
39, 579 S.E.2d 887, 890 (2003) (“It is the substance of the

application, or petition, and the relief which is sought

thereunder that determines its true nature, not the title

appended thereto by the petitioner. It has long been the law

that the nature of the action is not determined by what either

party calls it, but by the issues arising on the pleadings and

by the relief sought. We will, therefore, undertake our own

inquiry into the . . . issues arising on the pleadings and the

relief sought in appellants’ petition.” (citation, quotation

marks, and brackets omitted)), aff’d, 358 N.C. 523, 597 S.E.2d

706 (2004).

In substance, defendant contends that the trial court erred

in ordering him to pay plaintiff one-half of his basic annuity

because plaintiff was barred from raising that issue in her 2012

Motion since the trial court had already denied this same relief

in the 2011 Order; in addition, the trial court also erred in

finding defendant to be in contempt for failing to do something

he had never been ordered to do and in denying defendant’s

motion for sanctions based on the issue of the basic annuity.

Plaintiff contends that her 2010 and 2012 Motions are

substantively different, mainly because the 2010 Motion was a

motion to “clarif[y]” wording of the Amended Agreement as to the
 -25-
retirement benefits to reflect the “the clear intentions of the

parties” for plaintiff to receive one-half of defendant’s basic

annuity payments, while, in contrast, the 2012 Motion was a

motion for contempt for defendant’s failure to pay plaintiff her

one-half of the basic annuity. We agree with defendant.

Contrary to the trial court’s finding of fact that “[t]he

issue of whether or not the plaintiff is entitled to receive one

half of the defendant’s monthly FERS basic annuity was not fully

litigated and decided at the prior hearing in this cause on

March 25, 2011[,]” we find, based upon consideration of the

motions, the transcript from the 2011 hearing, and the 2011

Order, that the issue was quite fully litigated and decided. In

plaintiff’s 2010 Motion, she very specifically requested that

the trial court order defendant to pay of one-half of the basic

annuity payments, including both reimbursement of past sums due

and continued payment in the future. Plaintiff contends she was

seeking to “clarif[y]” the Amended Agreement, but legally, what

she sought would more properly be termed reformation of the

Amended Agreement. See Metropolitan Property and Cas. Ins. Co.,

126 N.C. App. at 798, 487 S.E.2d at 159.

But in its 2011 Order, the trial court denied reformation

of the Amended Agreement, although it did not use this
 -26-
terminology.5 The trial court found that the Amended Agreement

was “unambiguous” and that it would not “modify or supplement”

the Amended Agreement, and the trial court quite specifically

awarded plaintiff payment of one-half of the supplemental

annuity only and not the basic annuity. We know that this issue

was litigated and that the trial court did not overlook the

basic annuity or confuse it with the supplemental annuity,

because the trial court also found that defendant was already

receiving basic annuity payments and plaintiff had requested

that she receive half of both the basic and supplemental

annuities. Yet in plaintiff’s 2012 Motion, she again requested

that defendant be required to pay her one-half of the basic

annuity payments, past and future.

While the 2011 Order did not explicitly state that it was

denying plaintiff’s request for the basic annuity, in that order

the trial court made numerous and detailed findings regarding

both the basic annuity and the supplemental annuity but

ultimately awarded plaintiff only a portion of the supplemental

annuity. In the 2011 Order, the trial court found that while

“plaintiff contend[ed] that the Amended Separation Agreement

5
As the 2011 Order was not appealed, we express no opinion as to
whether the trial court could have or should have granted
reformation of the Amended Agreement in 2011.
 -27-
should be modified and clarified to required the defendant to

pay her ½ of his” basic annuity . . . “the court deems that the

Amended Separation Agreement is unambiguous in regards to the

plaintiff’s right concerning the defendant’s retirement benefits

and will not modify or supplemental the provisions contained

therein.” The trial court then found that plaintiff was

“entitled to receive ½ of the defendant’s” supplemental annuity.

The trial court’s conclusions of law and decree are supported by

the findings of fact as the trial court did not award plaintiff

payment for one-half of the basic annuity, as it stated it would

“not modify or supplement” the Amended Agreement to grant

plaintiff these payments as she requested, but the trial court

did order that plaintiff should receive one-half of the

supplemental annuity which was specifically provided for in the

Amended Agreement. The 2011 Order was not appealed by either

party and thus is the law of the case. See Wellons v. White,

___ N.C. App. ___, ___, 748 S.E.2d 709, 720 (2013) (“The law of

the case doctrine provides that when a party fails to appeal

that order, the decision below becomes the law of the case and

cannot be challenged in subsequent proceedings in the same

case.” (citation, quotation marks, and brackets omitted)). The

question of plaintiff’s entitlement to one-half of the basic
 -28-
annuity payments was decided in 2011 and the 2011 Order was not

appealed. As such, plaintiff’s 2012 Motion which again requested

payment for one-half of the basic annuity had no legal basis in

either the Amended Agreement or the 2011 Order, and the trial

court should not have allowed such a request. See id.

We also agree with defendant that he cannot be held in

contempt for something he was never ordered to do. In the 2012

Order, all of the findings of fact and conclusions of law

regarding why the trial court found defendant to be in contempt

were regarding his failure to pay the basic annuity payment, not

the supplemental annuity payment. But because defendant was

under no obligation to pay plaintiff one-half of the basic

annuity payments, under either the Amended Agreement, as decided

in the 2011 Order, or under the 2011 Order itself, which ordered

only payment of the supplemental annuity, he could not be held

in contempt on this issue. As failure to pay one half of the

basic annuity payment was the only basis upon which plaintiff

sought for defendant to be held in contempt, and that basis is

improper, the trial court should not have found defendant to be

in contempt.

Lastly, because the trial court ultimately determined that

plaintiff had not erred in bringing the basic annuity payment
 -29-
issue before the court again, it denied defendant’s request to

sanction plaintiff. But as noted above, this was error on the

part of the trial court. As such, on remand the trial court

should reconsider defendant’s motion for sanctions in light of

this opinion, although we express no opinion on whether the

trial court should or should not sanction plaintiff.

III. Conclusion

In conclusion, we reverse the trial court’s determination

that plaintiff is entitled to receive payment from defendant’s

basic annuity; we reverse the trial court’s determination that

defendant was in contempt, and we reverse and remand the trial

courts determination denying defendant’s motion for sanctions.

REVERSED and REMANDED in part.

Judges HUNTER, JR., Robert N. and DILLON concur.