Seaborn v. Seaborn

233 S.E.2d 67 (1977)

32 N.C. App. 556

Robert H. SEABORN v. Anna R. SEABORN.

No. 7610DC768.

Court of Appeals of North Carolina.

March 16, 1977.

*68 Douglass & Barham by Clyde A. Douglass, II, Raleigh, for plaintiff.

Thomas L. Barringer, Raleigh, for defendant.

BROCK, Chief Judge.

Plaintiff contends, and the trial court so found, that the consent judgment constituted a full and final settlement of all matters *69 between the parties. As such, the entire judgment is immune from further judicial modification. We disagree.

Modification is improper in a consent judgment which completely settles all property and marital rights between the parties "and which does not award alimony within the accepted definition of that term." Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, 243 (1964). In the present case alimony within the accepted definition of the term was awarded. The consent judgment recited the prior history of the matter stating that the defendant was awarded "alimony in the sum of Eighty Dollars ($80.00) per month" in a previous action, 68CVD1170.

The consent judgment thereafter ordered, in the first provision, that the judgment in 68CVD1170, ordering the $80.00 a month alimony, be amended to increase monthly payments to $150.00. In the second and third provisions the parties reciprocally transferred their interests in two parcels of real property.

". . . [A]n agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case." Id. at 70, 136 S.E.2d at 243.

In the consent judgment in question, the support provision and property settlement provision are separable. Since the judgment was entered on 13 December 1971, G.S. 50-16.9(a) applies. Under that statute the defendant may obtain a modification of the order for permanent alimony upon a showing of changed circumstances, even though the order was by consent. Brooks v. Brooks, 12 N.C.App. 626, 184 S.E.2d 417 (1971).

Even under Bunn v. Bunn, supra, which was decided prior to the enactment of G.S. 50-16.9(a), the amount of support payments is susceptible to court-ordered modification. Here the court ordered, adjudged, and decreed, albeit by consent, that the plaintiff increase his monthly support payments from $80.00 to $150.00. By making such order in the consent judgment, the court has gone beyond mere approval of the payments so as to adopt the agreement of the parties as its own determination of their respective rights and obligations. Id.; see also Parker v. Parker, 13 N.C.App. 616, 186 S.E.2d 607 (1972). Such a judgment "being an order of the court, may be modified. . . at any time changed conditions make a modification right and proper." Bunn v. Bunn, supra 262 N.C. at 69, 136 S.E.2d at 243.

Since the court's order in this case denying defendant's motion for an increase in payments is based on the erroneous ruling that the consent judgment constituted a final settlement of the amount of alimony, said order is reversed. The cause is remanded for further proceedings to determine whether or not a change of conditions has occurred and whether or not an increase in alimony payments is warranted.

Reversed and remanded.

PARKER and ARNOLD, JJ., concur.