White v. White

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.

NO. COA14-274
NORTH CAROLINA COURT OF APPEALS

Filed: 16 December 2014

KAREN H. WHITE,
Plaintiff

v. Pasquotank County
No. 09-CVD-770
RICHARD McMULLEN WHITE,
Defendant.

Appeal by Plaintiff from judgments entered 22 February 2011

by Judge Robert P. Trivette and 17 September 2013 by Judge C.

Christopher Bean in Pasquotank County District Court. Heard in

the Court of Appeals 10 September 2014.

The Twiford Law Firm, P.C., by Edward A. O’Neal, for
Plaintiff-Appellant.

Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
Smith, III, and Jonathan E. Huddleston, for Defendant-
Appellee.

DILLON, Judge.

Karen H. White (“Wife”) appeals from the trial court’s

declaratory judgment barring her claim for equitable

distribution of real property acquired by Richard McMullen White

(“Husband”) in his own name during the marriage based on the
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terms of an antenuptial agreement. She also appeals from the

final consent judgment awarding alimony, attorney’s fees, and

equitable distribution. For the following reasons, we affirm.

I. Background

Husband and Wife were married in 1983 and three children

were born of the marriage. Shortly before their marriage, the

parties signed an antenuptial agreement (the “Antenuptial”)

which addressed their rights to certain property owned by either

party.

At the time of their nuptials, Husband owned real estate

associated with his used car business; Plaintiff owned personal

property but not any real estate. During the marriage, Husband

acquired several rental properties titled in his name. Also

during the marriage, Husband and Wife purchased their marital

home, which was titled in both of their names.

In 2009, the parties separated. Wife filed this action

raising claims for child custody and support, post separation

support and alimony, equitable distribution, and attorney’s

fees. Husband filed his answer admitting that the marital home

was “marital property” but pleaded that the Antenuptial was a

bar to equitable distribution with respect to property he owned

in his individual name.
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In 2010, Wife filed a motion for declaratory judgment to

determine the rights and obligations of the parties under the

Antenuptial. Husband filed a motion for partial summary

judgment requesting the trial court to decree that the terms of

the Antenuptial operated as a bar to Wife’s claim for equitable

distribution of the real estate titled to him.

In 2011, following a hearing on the matter, the trial court

entered a declaratory judgment (the “Declaratory Judgment”)

stating that the Antenuptial was unambiguous and that it barred

Wife’s claim for equitable distribution of Husband’s real

estate.

In 2013, the trial court entered a consent order (the

“Consent Order”) which resolved the remaining claims of the

Wife. The Consent Order stated that Wife’s claims for equitable

distribution of Husband’s real estate had been adjudicated by

the Declaratory Judgment and that Wife had not waived her right

to appeal the Declaratory Judgment.

On 2 October 2013, Wife filed appeal from the Declaratory

Judgment and the Consent Judgment.

II. Analysis

On appeal, Wife contends that the trial court erred in

finding that the Antenuptial was unambiguous in creating a
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waiver of her marital interest in real property acquired by

Husband during the marriage. She concludes that this property

should be classified as marital property and subject to

equitable distribution. Husband counters that Wife waived any

challenge to the Consent Judgment; that her entire appeal should

be dismissed because she has attempted to manipulate the rules

of procedure to appeal from an interlocutory order; and that the

Declaratory Judgment and Consent Judgment should be, otherwise,

affirmed.

A. Waiver/Dismissal

Husband contends that Wife waived her right to appeal from

the Consent Judgment which set the final terms of equitable

distribution by failing to raise any argument in her brief

challenging this judgment. Wife concedes in her reply brief

that she has abandoned her appeal of the claims adjudicated by

the Consent Judgment. Accordingly, any appeal from the

adjudication of those claims has been waived. However, Wife’s

failure to present an argument regarding the Consent Judgment

does not waive her right to appeal from the Declaratory Judgment

adjudicating her equitable distribution claim regarding the real

estate acquired by Husband in his name during the marriage.
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Husband also argues that Wife’s appeal from the Declaratory

Judgment should be dismissed, contending that she has attempted

to manipulate the rules of procedure by signing the Consent

Judgment so that her appeal from the Declaratory Judgment would

not be interlocutory. Specifically, Husband argues that the

Consent Judgment “specifically acknowledged the right to

reinstate a claim if the appeal was successful” in contradiction

to our holding in Hill ex Rel Hill v. West, 177 N.C. App. 132,

627 S.E.2d 662 (2006).

We believe that our holding in Hill is distinguishable from

the present case and, therefore, overrule Husband’s argument

that Wife’s appeal should be dismissed. We recently noted that

“[t]his Court has . . . repeatedly limited Hill to the specific,

unusual facts present in that case.” Tong v. Dunn, ___ N.C.

App. ___, ___, 752 S.E.2d 669, 674 (2013) (citing Curl v. Am.

Multimedia, Inc., 187 N.C. App. 649, 654, 654 S.E.2d 76, 80

(2007); Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C.

App. 467, 472, 665 S.E.2d 526, 530 (2008); and Duval v. OM

Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261 (2007)). In

Hill, the plaintiffs raised a number of claims against a number

of parties. 177 N.C. App. at 133, 627 S.E.2d at 663. The trial

court granted summary judgment against the plaintiffs with
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respect to some of the claims. Id. This Court dismissed the

plaintiff’s appeal from a partial summary judgment order as

interlocutory, and noted that additionally the plaintiffs had

failed to include a statement of the grounds for appellate

review in violation of the appellate rules of procedure. Id. at

133, 627 S.E.2d at 663. On remand to the trial court, the

plaintiffs attempted to effect an immediate appeal from the

partial summary judgment order by voluntarily dismissing their

remaining claims in a rather unique manner. Id. at 135, 627

S.E.2d at 664. Specifically, the plaintiffs dismissed their

remaining claims in the form of a consent judgment entered by

the trial court whereby the plaintiffs’ remaining claims were

dismissed. Id. at 134-35, 627 S.E.2d at 663-64. However, the

consent judgment allowed the plaintiffs to resurrect these

dismissed claims in the event the plaintiffs won their appeal

regarding the other claims, even if the appeal was not resolved

in one year, thereby circumventing the requirements of N.C. R.

Civ. P. 41. Id. We dismissed the appeal as having been taken

from an interlocutory order, stating that the “manipulat[ion of]

the Rules of Civil Procedure in an attempt to appeal the []

summary judgment that otherwise would not be appealable” did not
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convert the partial summary judgment order into an appealable

final judgment. Id. at 135, 627 S.E.2d at 664.

In the present case, however, the Consent Judgment does not

contain any language that attempts to manipulate N.C. R. Civ. P.

41 through the inclusion of a statement that claims could be

reinstated at any time without regard to the one-year

limitation. This judgment simply states that it is a final

judgment on the equitable distribution claim “pending” a

successful appeal by Wife challenging the trial court’s

Declaratory Judgment regarding the Antenuptial, which could

operate to reinstate the claim for equitable distribution with

respect to Husband’s real estate. Therefore, Hill is not

controlling and Defendant’s argument is overruled.

B. Antenuptial Agreement

Wife argues that the trial court erred in finding that

there were no ambiguities in the Antenuptial and concluding that

it barred equitable distribution of the property acquired by one

of the parties during their marriage. We disagree.

“Declaratory judgment affords the appropriate procedure to

alleviat[e] uncertainty in the interpretation of written

instruments and to clarify litigation associated with an actual

controversy.” McCabe v. Dawkins, 97 N.C. App. 447, 449, 388
 -8-
S.E.2d 571, 572 (citation omitted), disc. review denied, 326

N.C. 597, 393 S.E.2d 880 (1990). Under the Uniform Declaratory

Judgment Act, N.C. Gen. Stat. § 1-253 et seq., “the court’s

findings of fact are conclusive if supported by any competent

evidence; and a judgment supported by such findings will be

affirmed, even though there is evidence which might sustain

findings to the contrary[.]” Nationwide Mut. Ins. Co. v.

Allison, 51 N.C. App. 654, 657, 277 S.E.2d 473, 475, disc.

review denied, 303 N.C. 315, 281 S.E.2d 652 (1981). Thus,

“[t]he function of our review is, then, to determine whether the

record contains competent evidence to support the findings[] and

whether the findings support the conclusions.” Id. The trial

court’s conclusions of law are reviewable de novo. Cross v.

Capital Transaction Grp., Inc., 191 N.C. App. 115, 117, 661

S.E.2d 778, 780 (2008) (citation omitted), disc. review denied,

363 N.C. 124, 672 S.E.2d 687 (2009).

Two people who are contemplating marriage may enter into a

valid contract before marriage with respect to the property and

property rights of either or both after marriage. Stewart v.

Stewart, 222 N.C. 387, 391, 23 S.E.2d 306, 308 (1942). We have

further explained that “[t]he term ‘antenuptial agreement’ or

‘marriage settlement’ is often applied to such agreements” and
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that “a valid antenuptial agreement may serve as a plea in bar

to the equitable distribution of property acquired during the

marriage[,]” pursuant to N.C. Gen. Stat. § 50-20(d). Prevatte

v. Prevatte, 104 N.C. App. 777, 780-81, 411 S.E.2d 386, 388

(1991). In other words, even though the right to equitable

distribution is a statutory property right, that “right may be

waived by a complete property settlement which contains a

general release of spousal property rights.” Id. at 781, 411

S.E.2d at 388. Husband pleaded as a bar to equitable

distribution of his real estate the terms of the Antenuptial.

Therefore, the issue before us is whether the Antenuptial

operated as a bar to Wife’s claim for equitable distribution of

the real estate owned solely in Husband’s name.

Principles of construction applicable to contracts,

generally, are applicable to premarital agreements. Stewart v.

Stewart, 141 N.C. App. 236, 240, 541 S.E.2d 209, 212 (2000).

“The heart of a contract is the intention of the parties[,]” and

“[t]his intention is to be gathered from the entire instrument,

viewing it from its four corners.” Jones v. Palace Realty Co.,

226 N.C. 303, 305, 37 S.E.2d 906, 907 (1946). “The contract

must be construed as a whole, and a paragraph or excerpt must be

interpreted in context with the rest of the agreement.”
 -10-
Security Nat'l Bank v. Educators Mut. Life Ins. Co., 265 N.C.

86, 93, 143 S.E.2d 270, 275 (1965) (citations omitted). “When

the language of the contract is clear and unambiguous,

construction of the agreement is a matter of law for the court

and the court cannot look beyond the terms of the contract to

determine the intentions of the parties.” Stovall v. Stovall,

205 N.C. App. 405, 410, 698 S.E.2d 680, 684 (2010). “If the

words employed are capable of more than one meaning, the meaning

to be given is that which it is apparent the parties intended

them to have.” Jones, 226 N.C. at 305, 37 S.E.2d at 907

(citation and quotation marks omitted).

Section I of the Antenuptial is at the heart of the

parties’ arguments, which states

[a]ny property, either real or personal,
acquired by either prospective spouse,
before or after their marriage, shall be the
separate property of the party owning or
obtaining the property, and the other party
shall make no claim or demand on the
separate property or on the heirs,
executors, or administrators of the owner’s
estate, for that separate property.

(Emphasis added.) Wife argues that the phrase “after their

marriage” in this paragraph is ambiguous, as it could mean (1)

after the marriage ended by divorce (excluding property acquired

during marriage and giving Plaintiff a right to equitable
 -11-
distribution in Defendant’s real property) or (2) after date of

marriage (including property acquired during marriage and

excluding Plaintiff’s right to equitable distribution of

Defendant’s real property). Plaintiff reasons that because of

this ambiguity, we should look to her trial and deposition

testimony along with other parts of the agreement to determine

the intent of the parties and that their intent was not to waive

equitable distribution of their property acquired by either

party during the marriage. Plaintiff concedes, however, that

“before . . . marriage” means before the parties were married.

Therefore, we must determine the parties intention in regards to

the phrase “after marriage[.]”

We believe that the trial court correctly interpreted the

Antenuptial to apply to property acquired by either party during

the marriage. Looking to the “four corners” of the document, we

note that in a preamble to the rest of the terms of the

agreement, the Antenuptial states:

The parties stipulate and recite that:

1. Prospective Husband and Prospective Wife
intend to be married.

2. Prospective Husband and Prospective Wife
are legal owners of real and personal
property located in the State of North
Carolina.
 -12-
3. Prospective Husband and Prospective Wife
desire to retain all property that they
presently own, whether real or personal, as
separate property, after solemnization of
their marriage.

4. That parties wish to set forth other
provisions relative to the manner in which
they will conduct themselves after marriage
and relate the business context in which
they will operate as man and wife.

(Emphasis added). The parties’ intent, as stated in the

preamble is that the agreement govern their conduct, including

the ownership of property, “after solemnization of the

marriage[,]” “after the marriage[,]” and “as man and wife.”

Paragraph 3 of the Preamble makes it clear that Section I’s

“before . . . marriage” refers to property owned before

“solemnization of their marriage[.]” We believe that it is

equally clear from paragraph 4 of the Preamble that “after

marriage” means while operating “as man and wife” or “after

solemnization of their marriage[.]”1

Wife contends that an antenuptial agreement must expressly

mention “equitable distribution” in order to operate as a waiver

1
An antenuptial agreement can be invalidated if it is the
product of undue influence, duress, coercion, or fraud, and if
there is a lack of full disclosure between the parties as to
their respective financial status. Howell v. Landry, 96 N.C.
App. 516, 525, 386 S.E.2d 610, 615 (1989). Plaintiff raised
none of these contractual defenses on appeal.
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of this right. In Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d

228 (1987), our Supreme Court held two identical releases for

the husband and wife in a separation agreement operated as a bar

to equitable distribution: “any and all other rights arising out

of the marriage relation in and to any and all property now

owned by the [“Wife,” or “Husband”] or which may be hereafter

acquired by [her or him] and further does hereby release the

right to administer upon [her or his] estate.” Id. at 288, 295,

254 S.E.2d at 231, 234-35. The agreement did not contain the

phrase “equitable distribution.” Id. However, the Court

analyzed the intent of the parties based on the specific terms

of the agreement and determined that they intended a waiver of

equitable distribution. Id. In the present case, by entering

into the Antenuptial, the parties agreed that any property

acquired and owned by either of them would be the separate

property of the owner. Accordingly, Wife’s argument is

overruled.

III. Conclusion

The unambiguous language of the Antenuptial stated that

real or personal property acquired by either party before or

after marriage was separate property, and this language

supported the trial court’s findings and conclusion that the
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Antenuptial operated as a waiver of equitable distribution of

such property in the Declaratory Judgment. As we affirm the

Declaratory Judgment, we also affirm the conclusions based on

that Declaratory Judgment in the Consent Judgment.

Accordingly, the trial court’s judgments are

AFFIRMED.

Judge HUNTER, Robert C. and Judge ERVIN concur.

Report per Rule 30(e).