An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1133
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
JENESS J. CAMPBELL,
Plaintiff,
v. Wake County
No. 09 CVD 17335
MELVIN E. CAMPBELL,
Defendant.
Appeal by defendant from order entered 3 May 2013 by Judge
Lori G. Christian in Wake County District Court. Heard in the
Court of Appeals 19 February 2014.
Kurtz & Blum, PLLC, by Lynn A. Prather, and Sandlin Family
Law Group, by Debra A. Griffiths, for plaintiff-appellee.
Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for
defendant-appellant.
BRYANT, Judge.
The District Court has subject matter jurisdiction over
claims for equitable distribution and alimony, and can
incorporate those claims into a judgment for absolute divorce by
the consent of both parties. A separation agreement, once
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incorporated by the trial court into a divorce judgment, can be
enforced through the contempt powers of the court.
On 31 August 2009, plaintiff Jeness J. Campbell filed for
absolute divorce from defendant Melvin E. Campbell. That same
day, plaintiff filed a separate action for a qualified domestic
relations order (“QDRO”).1 On 15 October 2009, defendant
answered and filed a pro se answer and counterclaim for
equitable distribution, alimony and attorneys’ fees. Although
defendant captioned his answer and counterclaim in response to
plaintiff’s complaint for absolute divorce, he listed on his
response the file number as being 09 CVD 173334, which does not
match the file number for either the divorce action (09 CVD
17335) or the QDRO action (09 CVS 17334).
On 30 November 2009, plaintiff filed motions to dismiss, to
strike, and for Rule 11 sanctions, alleging that defendant’s
counterclaim was an insufficient defense to absolute divorce and
contained irrelevant material meant to harass plaintiff, and
that defendant’s counterclaim was meritless because defendant
had already agreed to a mediated settlement agreement resolving
1
Plaintiff’s QDRO action, 09 CVD 17334, sought an order
regarding a $25,000.00 lump sum distribution to defendant from
plaintiff’s Duke University retirement plan. On 19 February
2010, the trial court issued an order granting plaintiff’s QDRO
action.
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all issues. On 3 December 2009, plaintiff filed an affidavit of
judicial assignment and notice of hearing requesting an
expedited hearing date for her motions to dismiss, to strike,
and for Rule 11 sanctions.
On 3 February 2010, a memorandum of mediated settlement
agreement was filed. The settlement agreement contained
provisions for the sale of the marital home in Brier Creek and a
property in Kentucky; the division of bank, credit card, and
retirement accounts; custody and visitation rights for the
parties’ dog, Bella; and plaintiff’s alimony payments and
distributive award to defendant. That same day, the trial court
entered a judgment for absolute divorce which incorporated the
memorandum of settlement agreement and noted that with the
exception of the pending QDRO, “[a]ll other outstanding issues
between the parties have been resolved pursuant to the mediated
agreement.” On 15 March 2010, the trial court entered an order
dismissing all of plaintiff’s motions and defendant’s
counterclaims.
On 26 March 2012, plaintiff filed a motion to modify
alimony and for an order to show cause. Plaintiff alleged that
defendant had: relinquished his rights to the family dog, Bella;
failed to abide by the trial court’s order regarding the sale of
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the Kentucky property; experienced an improvement in his
financial situation requiring a change in plaintiff’s alimony
payments; and that defendant “has been frustrating the sale of
the marital residence so that he can remain living there rent-
free with Plaintiff paying the entire mortgage, taxes, home
owners association fees and social country club dues.”
Plaintiff thereafter dismissed her motion to modify alimony. An
amended and supplemental motion for an order to show cause was
filed by plaintiff on 11 January 2013, and again on 22 January,
alleging defendant had committed many acts that obstructed the
sale of the marital home.
In the meantime, on 10 January 2013, defendant filed
motions to modify alimony and to show cause for contempt,
alleging that plaintiff had refused to sign listing contracts
with realtors, failed to reimburse defendant for repairs to the
marital home, and had violated defendant’s visitation rights
with the family dog. Defendant further alleged that because
plaintiff’s financial situation had improved while defendant’s
financial situation simultaneously declined, defendant was
entitled to an increase in alimony.
On 5 February 2013, plaintiff filed a motion for Rule 11
sanctions against defendant, alleging that defendant’s motions
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were meritless and filed to harass her. Defendant filed motions
to compel and for sanctions on 12 February. On 14 February,
plaintiff filed a motion to dismiss defendant’s motions to
compel and for sanctions and a motion for Rule 37 sanctions,
again alleging that defendant’s motions to compel and for
sanctions were frivolous and made solely for the purpose of
harassing her.
On 18 March 2013, the trial court conducted a hearing on
all motions filed by plaintiff and defendant. The trial court
issued a contempt order on 2 May, holding defendant in civil
contempt of the 3 February 2010 order2; denying plaintiff’s
motions for Rule 11 and Rule 37 sanctions; and dismissing
defendant’s motions to compel, modify alimony and for sanctions.
Defendant appeals.
__________________________
2
In holding defendant in civil contempt of the 3 February 2010
order, the trial court made findings of fact that defendant
willfully refused to sell the marital home by: failing to place
the home on the market with a reputable real estate agent;
listing the home at an unrealistic sale price; refusing to place
“for sale” signs in the yard or a lock box on the door; making
unreasonable demands and conditions on realtors wishing to show
the home to potential buyers; and failing to keep the home in a
saleable condition by not making required repairs, maintaining
the yard, and keeping the home’s temperature at a comfortable
level. The trial court then noted that “[i]t is clear that
Defendant is willfully blocking the sale of the marital house”
and that “Defendant’s actions are willful and calculated to
ensure that the house will never sell.”
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On appeal, defendant argues that: (I) the trial court
lacked subject matter jurisdiction over defendant’s claims for
alimony and equitable distribution; (II) the trial court lacked
subject matter jurisdiction to incorporate the memorandum of
mediated settlement agreement into the divorce complaint; and
(III) defendant cannot be held in contempt of a void order.
I.
Defendant first argues that the trial court lacked subject
matter jurisdiction over his claims for alimony and equitable
distribution. We disagree.
"[W]hether a trial court has subject matter jurisdiction is
a question of law, which is reviewable on appeal de novo."
Yurek v. Shaffer, 198 N.C. App. 67, 75, 678 S.E.2d 738, 743
(2009) (citations omitted).
Defendant contends that because plaintiff did not file for
equitable distribution and alimony when she filed for absolute
divorce and failed to join defendant’s counterclaims for
equitable distribution and alimony to her complaint for absolute
divorce, the trial court lacked subject matter jurisdiction to
adjudicate defendant’s claims for equitable distribution and
alimony when it ruled on plaintiff’s complaint for absolute
divorce. We disagree, as a review of the record indicates that
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defendant’s counterclaims for equitable distribution and alimony
were settled by the consent of both parties to the settlement
agreement.
Subject matter jurisdiction over domestic claims is
reserved to the District Court. Sloan v. Sloan, 151 N.C. App.
399, 403, 566 S.E.2d 97, 100 (2002). In a divorce action,
either party may bring a claim for alimony and/or equitable
distribution. N.C. Gen. Stat. §§ 50-16.3(A)(a), 21(a) (2013).
Plaintiff filed separate actions for absolute divorce and a
QDRO. Defendant counterclaimed for equitable distribution,
alimony and attorneys’ fees; the counterclaim contained a file
number that did not match the file number of either action, but
was otherwise tailored to respond to plaintiff’s complaint for
absolute divorce. In its 12 February 2010 order dismissing
defendant’s counterclaims, the trial court noted that
“Defendant’s answer had the wrong case number, but it was
clearly meant to be an answer to the Absolute Divorce Complaint
by its contents,” and that “Defendant and Plaintiff . . .
consented to integrate the parties’ mediated settlement
agreement for Equitable Distribution and Alimony with the
judgment for absolute divorce.” The trial court also noted in
its judgment for absolute divorce that “Defendant had filed his
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own answer,” indicating that the trial court considered
defendant’s counterclaims for equitable distribution and alimony
at the time it entered judgment as to the divorce. As such,
defendant’s counterclaims for equitable distribution and alimony
were considered in conjunction with plaintiff’s complaint for
absolute divorce by the trial court. Moreover, we note that as
defendant’s counterclaim was filed prior to the 3 February 2010
order granting plaintiff’s complaint for absolute divorce on 15
October 2009, the trial court had jurisdiction over defendant’s
counterclaim for equitable distribution pursuant to N.C. Gen.
Stat. § 50-11(e) (2013). See Stark v. Ratashara-Stark, No.
COA07-665, 2008 N.C. App. LEXIS 41, at *5 (Jan. 15, 2008)
(holding that where the plaintiff’s claim “clearly preserves the
equitable distribution claim prior to the . . . entry of
judgment of absolute divorce, the trial court had jurisdiction
to hear plaintiff’s claim for equitable distribution.”).
Defendant’s argument is overruled.
II.
Defendant next contends the trial court lacked subject
matter jurisdiction to incorporate the settlement agreement into
the divorce order. We disagree.
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"A universal principle as old as the law is that the
proceedings of a court without jurisdiction of the subject
matter are a nullity." Burgess v. Gibbs, 262 N.C. 462, 465, 137
S.E.2d 806, 808 (1964) (citation omitted). "[O]ur Supreme Court
[has] fashioned a 'one-size fits all' rule applicable to
incorporated settlement agreements in the area of domestic
law," Fucito v. Francis, 175 N.C. App. 144, 148, 622 S.E.2d 660,
663 (2005), which states that "[a]ll separation agreements
approved by the court as judgments of the court [after 11
January 1983] will be treated . . . as court ordered
judgments." Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d
338, 342 (1983). “[C]ourt ordered separation agreements, as
consent judgments, are modifiable, and enforceable by the
contempt powers of the court, in the same manner as any other
judgment in a domestic relations case." Id. A separation
agreement can be kept separate and under the laws of contract
only where the parties agree to not submit their separation
agreement to the trial court. Id.
Defendant contends the trial court lacked subject matter
jurisdiction to incorporate the settlement agreement into the
absolute divorce because the agreement lacks any indication that
it was to be incorporated into the divorce judgment, and the
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trial court failed to make any findings of fact that the parties
stipulated to the incorporation. However, the record does not
support defendant’s contention. In its 3 February 2010 judgment
for absolute divorce, the trial court noted that “all
outstanding issues between the parties have been resolved
pursuant to a mediated agreement by both parties.” The trial
court then made the following handwritten conclusion of law: “4.
The parties[‘] mediated Settlement Agreement dated February 3,
2009 and contain[ing] the parties[‘] separation agreement is
incorporated by reference.” The settlement agreement, which was
signed by defendant and his counsel, clearly states that “5. The
parties waive the inclusion of any findings of fact and
conclusions of law in the formal judgment/order which will
memorialize this Memorandum.” Moreover, in his 10 January 2013
motions for an order to show cause and modify alimony, defendant
acknowledged that the “mediated agreement including provisions
for equitable distribution and alimony was executed by the
parties on February 3, 2009” and that “Said agreement was
incorporated into the parties’ divorce by agreement on February
3, 2010 . . . .” As such, defendant agreed in the settlement
agreement to be bound by its terms, including its incorporation
into the divorce judgment.
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Additional evidence supports this incorporation, as in its
12 March 2013 order dismissing defendant’s counterclaims and
plaintiff’s motions, the trial court made the following finding
of fact: “Defendant and Plaintiff . . . consented to integrate
the parties’ mediated settlement agreement for Equitable
Distribution and Alimony with the judgment for absolute
divorce.” The trial court then made the following conclusion of
law: “3. That the parties’ mediated agreement settling the
matters of alimony and equitable distribution shall be attached
to and incorporated with the parties’ Divorce Judgment.” We
further note that in the 3 February 2010 hearing regarding
plaintiff’s complaint for absolute divorce, defendant
acknowledged that he had signed the settlement agreement and
that the agreement “represents the entire agreement of the
parties with respect to the issues addressed herein.” Defendant
also did not object to the trial court’s incorporation of the
settlement agreement into the judgment for absolute divorce at
the time the trial court proposed to do so. “[T]here is a
presumption that provisions in a separation agreement or consent
judgment made a part of the court's order are separable . . . .
However, where the parties include unequivocal integration . . .
clauses in the agreement, this language governs.” Hayes v.
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Hayes, 100 N.C. App. 138, 147, 394 S.E.2d 675, 680 (1990)
(citations omitted). As the language of the settlement
agreement clearly indicates an intention by both parties to
integrate this agreement into the divorce judgment, the trial
court had subject matter jurisdiction to make this
incorporation. See id. at 149, 394 S.E.2d at 681 (“Clearly, the
parties presented their Agreement to the court for its approval,
and this submission is sufficient to bring it within the
principles applied in this opinion.”). Defendant’s argument is
overruled.
III.
Thirdly, defendant argues that he cannot be held in
contempt of court because the 3 February 2010 order is void. We
disagree.
“As an order of the court, the court adopted separation
agreement is enforceable through the court's contempt powers.
This is true for all the provisions of the agreement since it is
the court's order and not the parties' agreement which is being
enforced.” Walters, 307 N.C. at 385, 298 S.E.2d at 341.
[A] party to a consent order like the one
before us may move for the trial court to
exercise its contempt powers to enforce that
consent order. Contempt, however, may only
be found upon a showing that the party in
noncompliance with the consent order acted
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willfully, and was capable of complying with
the consent order.
Holden v. Holden, ___ N.C. App. ___, ___, 715 S.E.2d 201, 208
(2011).
As discussed in Issues I and II, the trial court had
subject matter jurisdiction to issue the 3 February 2010 order;
therefore, the order was not void. In holding defendant in
contempt of the 3 February 2010 order, the trial court made
numerous findings of fact that defendant acted willfully in
violating the terms of the order and that defendant had the
financial resources available to comply with the order. The
trial court then made the following conclusions of law:
“Defendant has willfully refused to comply with the February 3,
2010 Order[;]” “Defendant is in civil contempt of the February
3, 2010 Order[;]” and “Further violation of the . . . order . .
. shall result in Defendant being ordered into custody of the
Wake County Jail by this Court.” As such, the trial court made
the appropriate findings of fact and conclusions of law required
to hold defendant in contempt. Defendant’s final argument is
overruled.
Affirmed.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).
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