DeGree v. DeGree

325 S.E.2d 36 (1985)

Francine D. DEGREE v. Walter B. DEGREE.

No. 8418DC524.

Court of Appeals of North Carolina.

February 5, 1985.

*37 Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith and John A. Dusenbury, Jr., Greensboro, for plaintiff-appellee.

Harold F. Greeson by Constance L. Floyd, Greensboro, for defendant-appellant.

MARTIN, Judge.

The issue on appeal is whether the District Court of Guilford County should have assumed jurisdiction, in this case, to enforce alimony provisions of the 1978 separation agreement. We conclude the court had no jurisdiction to hear the matter of alimony enforcement.

Plaintiff's "supplemental complaint" was clearly a motion in the cause to modify the alimony provisions of the 1978 separation agreement. However, the separation agreement was not incorporated into a court order, but rather remained a contract between the parties. As such, it was enforceable only as an ordinary contract, Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964), and the court was without power to modify it except for the court's power to provide for adequate support for minor children, absent the mutual consent of both parties thereto. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); McKaughn v. McKaughn, 29 N.C.App. 702, 225 S.E.2d 616 (1976).

Although the parties stipulated in a pre-trial conference "that the court has jurisdiction of the parties and of the subject matter," we find such to be ineffective in conferring jurisdiction upon the court. A stipulation by the parties that the court has jurisdiction of the matter of alimony enforcement does not confer jurisdiction since the parties cannot, by consent, give a court jurisdiction over subject matter of which it would not otherwise have jurisdiction. See State v. Fisher, 270 N.C. 315, 154 S.E.2d 333 (1967); Collins v. Collins, 18 N.C.App. 45, 196 S.E.2d 282 (1973). Consequently, the trial court erred in denying defendant's motion to dismiss and in treating plaintiff's motion as a supplemental pleading pursuant to Rule 15(d) of the North Carolina Rules of Civil Procedure. Therefore, the judgment of the trial court is vacated and the action dismissed.

Vacated and dismissed.

BECTON and JOHNSON, JJ., concur.