Potts v. Potts

211 S.E.2d 815 (1975)

24 N.C. App. 673

Margaret Shutt POTTS v. Billy Joe POTTS.

No. 7421DC931.

Court of Appeals of North Carolina.

February 19, 1975.

D. Blake Yokley, Winston-Salem, for plaintiff.

*816 William E. Hall, Mocksville, for defendant.

CLARK, Judge.

Defendant contends that the consent judgment dated 17 April 1973 is res judicata, and that the alimony pendente lite judgment dated 30 April 1974, finding the defendant to be in willful contempt and ordering him to comply with the terms of the alimony order is barred as a matter of law. To determine the propriety of the action of the trial court in the contempt order, the effect of the parties' January, 1974, reconciliation on the consent judgment must be resolved.

It is established in this jurisdiction that if a separation agreement or a consent judgment is executory as to support and maintenance, a reconciliation and resumption of cohabitation may terminate those provisions, but it would have no effect on executed provisions. See, generally, Jones v. Lewis, 243 N.C. 259, 90 S.E.2d 547 (1955). In the normal situation, a separation agreement or a consent judgment incorporates provisions for periodic alimony payments and child support, which by their very nature remain executory from period to period and may be abrogated upon reconciliation. Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248 (1953). A provision for support is sometimes fully executed before the reconciliation, as where the husband pays money in a lump sum for support and maintenance in return for the wife's release of all future claims. In these circumstances, since the agreement is fully executed prior to the reconciliation, it cuts off any rights the wife may thereafter have to alimony. See 35 A.L.R.2d 707, § 6. In the circumstances of the case at bar, we can discern no valid distinction between the case where a wife agrees to release her claims to future support by accepting a lump sum amount in consideration thereof and the case as here where the parties have mutually agreed in a consent judgment to release future support claims. The judgment to which both parties consented was entered 17 April 1973. The provision in that judgment calling for the division of property and the mutual waiver of alimony was executed and was a definite settlement of a property right within the meaning of the law of this State. See Wilson v. Wilson, 261 N.C. 40, 134 S.E.2d 240 (1964); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); and Brown v. Brown, 205 N.C. 64, 169 S.E. 818 (1933).

Consequently, the subsequent reconciliation by the parties did not abrogate those portions of the consent judgment relating to property settlement and waiver of alimony, and that judgment precludes the recovery of alimony as provided by the 25 April 1974 judgment. Therefore, the judgment of the trial court finding the defendant to be in willful contempt for failure to pay said alimony is in error and is vacated and the cause remanded for such further proceedings as may be appropriate.

Vacated and remanded.

BROCK, C. J., and BRITT, J., concur.