Parker v. Parker

186 S.E.2d 607 (1972)

13 N.C. App. 616

Valerie H. PARKER v. Rhondle M. PARKER.

No. 7221DC18.

Court of Appeals of North Carolina.

February 23, 1972.

*608 Pettyjohn & Frenck by H. Glenn Pettyjohn, Winston-Salem, for plaintiff appellee.

Wilson & Morrow, by Harold R. Wilson, Winston-Salem, for defendant appellant.

GRAHAM, Judge.

Defendant questions only whether the court had jurisdiction to entertain plaintiff's motion and not whether, if jurisdiction were present, the court could properly order him to post a bond. In passing we note that the court found that defendant no longer resides within this State and that he has no attorney of record in this case. Under these circumstances, requiring a bond was an appropriate method of enforcing the court's decree. See G.S. § 50-16.7(b); G.S. § 50-13.4(f) (1).

The court had jurisdiction to hear the motion unless, as defendant contends, the consent judgment of November 1969 is a mere contract between the parties, approved by the court. We hold that the judgment is more than a contract because in it the court specifically orders defendant to make the payments which he agreed to make. In Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, Justice Sharp, speaking for the court, clearly distinguishes between the kinds of consent judgments which are enforceable by contempt and those which are not:

"Consent judgments for the payment of subsistence to the wife are of two kinds. In one, the court merely approves or sanctions the payments which the husband has agreed to make for the wife's support and sets them out in a judgment against him. Such a judgment constitutes nothing more than a contract between the parties made with the approval of the court. Since the court itself does not in such case order the payments, the amount specified therein is not technically alimony. In the other, the court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders the husband to pay the specified amounts as alimony."

The judgment here is of the latter type. A court is not rendered powerless to enforce its decree because the terms of the decree have been consented to by the parties. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71. The fact defendant consented to the terms of the judgment renders him under no less a duty to do what the court ordered than would be the case if there had been no consent.

Defendant attempts to argue that the judgment of 14 November 1969 does *609 not contain sufficient findings of fact. Suffice to say, defendant did not except to that order but consented in writing to its provisions. He certainly may not attack it now.

Affirmed.

MALLARD, C. J., and HEDRICK, J., concur.