Alice Jean HENDERSON
v.
Gary M. HENDERSON.
No. 815DC495.
Court of Appeals of North Carolina.
February 2, 1982.*660 Bruce H. Jackson, Jr., Wilmington, for plaintiff-appellee.
Goldberg & Anderson by Frederick D. Anderson, Wilmington, for defendant-appellant.
HARRY C. MARTIN, Judge.
Once again this Court is asked to determine the effects of a consent judgment in a domestic relations setting. It is defendant's contention that because the agreement contemplates a full and final settlement, the terms of which are unmodifiable absent consent of the parties, a fortiori, the judgment is unenforceable by contempt. And, if contract law applies to the agreement, then by its terms a breach by the plaintiff would excuse performance by the husband. Wheeler v. Wheeler, 299 N.C. 633, 263 S.E.2d 763 (1980).
*661 From our review of the law involving consent judgments in domestic settings, we first note that exceptions have all but engulfed the "general" rule that a husband and wife who have entered into a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of a consent judgment entered thereon. The agreement cannot be modified, ignored, or set aside by the court without the consent of the parties and is enforceable only as an ordinary contract. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964); Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235 (1962); Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956); Ellis v. Ellis, 193 N.C. 216, 136 S.E. 350 (1927). Consent judgments under this category have been distinguished as receiving only the approval or sanction of the court. They serve no useful purpose and have been a source of litigation giving rise to unforeseen consequences in the form of numerous exceptions.
A consent judgment which constitutes nothing more than a contract between the parties made with the approval of the court is not final and binding as to those provisions involving custody or support of minor children. Bunn, supra; Kiger, supra; Holden, supra. A contract-type consent judgment may also be set aside or modified upon a showing of fraud, coercion, or mutual mistake in its procurement or execution. McLeod v. McLeod, 266 N.C. 144, 146 S.E.2d 65 (1966); Kiger, supra. Moreover, there is authority that such a contract-type consent judgment may be enforceable by contempt proceedings for a willful violation of its terms. McLeod, supra. In addition, even if not initially enforceable by contempt, the same result is now obtainable through the vehicle of a decree for specific performance. Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979).
By far the most significant exception to the general rule that the court is without authority to modify or enforce a consent judgment is a finding that the court has adopted the agreement of the parties as its own determination of their respective rights and obligations. The judgment is thus superseded by the adoption of the parties' agreement as an order of the court. White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979); Bunn, supra; Britt v. Britt, 36 N.C.App. 705, 245 S.E.2d 381 (1978). Upon such a finding, the court has the authority to enforce its judgment through civil contempt proceedings. Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978); Mitchell, supra; Bunn, supra; Elmore v. Elmore, 4 N.C.App. 192, 166 S.E.2d 506 (1969); Dunn v. Dunn, 1 N.C. App. 532, 162 S.E.2d 73 (1968). In addition, a court-adopted judgment is subject to modification within certain limitations. The order must be one to pay alimony; that is, the payments must be denominated alimony or be alimony equivalents rather than, as the result of a property division, constituting reciprocal consideration for a property settlement. White, supra. Changed circumstances must be found to justify modification. Bunn, supra; Britt, supra.
Turning now to the facts of our case, we cannot agree with defendant that the no modification/final settlement provisions of the agreement is the determinative factor in reaching a conclusion that this is a contract-type consent judgment. It is not the intent of the parties, but the intent of the judge which controls. Such is the fate of those attorneys who persist in soliciting the "rubber-stamp" approval of the court on out-of-court settlement agreements. Rarely will the court's judgment not be prefaced by the words "It is Ordered, Adjudged and Decreed," evidencing the court's intent to adopt and order rather than merely "approve" the provisions of agreement. White, supra; Britt, supra; Dunn, supra. Moreover, when a court enters judgment on the facts found by it, it loses its character as a consent judgment. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). In the case sub judice, the court made extensive findings of fact. It is not for this Court to second guess the circumstances under which these findings were made, i.e., that the attorneys *662 drew up the entire agreement and submitted it only for Judge Lambeth's signature. It is apparent from the 15 December 1980 judgment that Judge Lambeth intended to adopt the findings as his own. Moreover, while recognizing that certain provisions relating to property settlement and alimony in the judgment may not be modifiable, "[t]he Court in adopting this Judgment containing this language did not intend nor did it waive any right of the court to enforce a willful violation of any term of this Judgment by civil contempt."
We are thus faced with the question of whether a judgment which has been adopted by the court, but which contains unequivocal language to the effect that it is not subject to modification, may yet be enforced by civil contempt. We answer in the affirmative. In so holding we reject the ipso facto argument that because provisions in a judgment may preclude modification, enforcement of those provisions is beyond the reach of the court. In 1957 one astute commentator wrote:
North Carolina follows a consistent pattern in saying consent judgments can neither be modified nor enforced by contempt, whereas the majority rules refuse modification but allow contempt proceedings. It is submitted that as to contempt the majority is the better view; otherwise the judgment is of no practical value to the wife other than as a judicial affirmation of the contract existing between the parties. She would be as well off without the decree because she can enforce it only by the usual methods of enforcing contracts.
35 N.C.L.Rev. 408-09 (1957).
Matters involving custody and support of minor children remain within the court's jurisdiction. Holden, supra. As alimony provisions in a separation agreement are now enforceable through a decree of specific performance, Moore, supra, it seems appropriate to recognize a distinction between modification and enforcement of these judgments and to permit a court to do directly what it may do indirectly.
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.
Haynes v. Haynes, 45 N.C.App. 376, 383, 263 S.E.2d 783, 787 (1980). Hence, once it is determined that a court has adopted the judgment, and the presumption favors adoption, the court may enforce its provisions upon a showing of willful failure to comply. This is so notwithstanding the fact that some or all of the provisions relating to property settlement or alimony are not subject to modification, i.e., are either contractual in nature or are otherwise reciprocal as discussed in White, supra.
In light of the foregoing, we find that the trial judge did not err in ordering each party to comply with the order of the court as contained in the 13 March 1980 judgment. In his 15 December 1980 judgment, Judge Lambeth was merely exercising his authority under the original judgment.
Defendant further raises several issues relating to the sufficiency of the evidence to support the trial court's findings of fact and conclusions of law. While we do not have the benefit of certain tapes offered at trial, we have read the testimony carefully and conclude that neither party is without fault. What surfaces from the record is an unceasing series of attacks and counterattacks, each designed to further the bitterness and animosity between the parties, to the detriment of the child. We hold that Judge Lambeth's efforts to resolve the dispute were positive and correct in every respect.
Defendant finally contends that the evidence at trial was insufficient to support the court's finding that, during the period of default, he had the ability to comply with the alimony provisions as set forth in the 13 March 1980 judgment. *663 Judge Lambeth based this finding on the fact that defendant was an "able-bodied man" under no legal, mental or physical disabilities; that on 13 March 1980 he had the ability to comply with the alimony provisions; and that there had been no change of circumstances. This finding falls short of the mark to support the court's ordering defendant imprisoned for contempt until he pays the arrearage. The question before the court was not a modification or reduction of alimony, which would necessitate a finding of changed circumstances. Under these facts it is necessary to find that defendant's failure to pay was willful; that is, the evidence must support a finding that, during the period of default, defendant had the ability to comply with the order. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966); Teachey v. Teachey, 46 N.C.App. 332, 264 S.E.2d 786 (1980). In order to support a sentence of confinement in jail for contempt, it is further necessary to find that defendant has the present ability to pay the arrearage, either by making immediate payment or by taking reasonable measures to obtain that amount. Mauney, supra; Frank v. Glanville, 45 N.C.App. 313, 262 S.E.2d 677 (1980). On the record before us, there is insufficient evidence of defendant's ability to comply with the order during the period of default, or with the order to pay the arrearage, and there were no findings detailing his ability to pay.[1]
We therefore vacate that portion of the judgment dealing with the court's finding defendant in contempt and ordering his confinement until he pays the arrearage. Upon remand, further proceedings may be held with respect to the willfulness of defendant's failure to pay. The judgment is affirmed in all other respects.
Modified and affirmed.
ARNOLD and WELLS, JJ., concur.
NOTES
[1] See Fagley v. Fagley, (filed 19 January 1982), discussing what constitutes sufficient evidence and findings that defendant had an ability to comply with an order to pay alimony during a period of default and that his failure to do so was therefore willful.