Crutchley v. Crutchley

281 S.E.2d 744 (1981)

Jenne Eder CRUTCHLEY v. William F. CRUTCHLEY.

No. 801DC1176.

Court of Appeals of North Carolina.

September 15, 1981.

*746 Haywood, Denny & Miller by George W. Miller, Jr., Durham, for plaintiff-appellant.

White, Hall, Mullen, Brumsey & Small by Gerald F. White and Jennette, Morrison & Austin by John S. Morrison, Elizabeth City, for the defendant-appellee.

ROBERT M. MARTIN, Judge.

Plaintiff's sole assignment of error, based on an exception to the order appealed from, reads as follows:

*747 That the Court below committed error in dismissing the plaintiff's motions in the cause for the reason that the arbitrator's award entered on December 1, 1977, and the subsequent order of the Court confirming said award dated December 1, 1977, on its face failed to comply with the procedure in actions for alimony and alimony pendente lite as provided by G.S. 50-16.8(f) and for the further reason that all of said orders are subject to modification as provided by G.S. 50-16.9(a).

Thus the only question before this Court on this appeal concerns the validity and effect of the portion of the arbitrator's award concerning support of the plaintiff-appellant.

The threshold question which we must determine is whether disputes concerning spousal support are arbitrable.[1] The Uniform Arbitration Act, adopted in North Carolina in 1973, N.C.Gen.Stat. § 1-567.1 et seq., governs written agreements to arbitrate, in the absence of a stipulation to the contrary between the parties, unless the agreement is one between employers and employees or their representatives. N.C. Gen.Stat. § 1-567.2(b). The 18 October 1976 consent order was a written agreement between plaintiff and defendant to arbitrate, as discussed more fully infra. It did not contain a stipulation that the Uniform Arbitration Act was inapplicable. The Act, therefore, governs our determination of the validity and effect of the parties' agreement to arbitrate the issue of spousal support in this case.

N.C.Gen.Stat. § 1-567.2(a) reads, in pertinent part, as follows:

[t]wo or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement.... Such agreement... shall be valid, enforceable, and irrevocable except with the consent of all the parties, without regard to the justiciable character of the controversy. (Emphasis added.)

As noted above, in subsection (b) the legislature made two specific exceptions to the general rule stated in subsection (a), neither of which is applicable to this case. We believe it is significant that the legislature did not see fit to exclude domestic disputes from the Act which provides a comprehensive procedure for the arbitration of "any controversy." In its wisdom, the legislature may decide to exclude domestic matters from the Act and may declare domestic issues to be nonarbitrable. But unless and until the legislature takes such action, we must assume that by adopting the broad language of N.C.Gen.Stat. § 1-567.2(a), the legislature intended that any controversy, including a controversy concerning the amount of spousal support, is arbitrable.

We note, in support of our position, that North Carolina allows spouses, upon the break-up of a marriage, to enter into an agreement determining the right of the wife to support or alimony.[2] It seems logical to hold that if spouses may contract with regard to this issue, they may contract to have the issue determined by an arbitrator. Thus, based on the broad language of N.C.Gen.Stat. § 1-567.2(a), we conclude that the issue of spousal support is arbitrable in North Carolina. Having reached this conclusion, we must determine whether one party to the agreement to arbitrate may seek a judicial modification of an arbitrator's award concerning this issue.

Again, our decision is governed by North Carolina's Arbitration Act. N.C.Gen. Stat. § 1-567.14 provides that a party may seek a court order modifying the award on specified grounds within ninety days after delivery of a copy of the award to that party. Appellant, in the present case did not attempt to seek a judicial modification of the award within the ninety-day time limit. She, therefore, waived her contention *748 that the award is imperfect in a matter of form. N.C.Gen.Stat. § 1-567.14(a)(3).

Appellant also contends that the trial court failed to comply with N.C.Gen.Stat. § 50-16.8(f) in its 1 December 1977 order confirming the arbitrator's award by failing to find facts and make conclusions of law. G.S. 50-16.8(f), however, contemplates a judicial determination of an action for alimony or alimony pendente lite, and is inapplicable to the situation where the parties agree to arbitrate the issue of spousal support. Rather, N.C.Gen.Stat. § 1-567.12 controls. That statute provides that unless within the time limits specified in the Arbitration Act, an application to vacate modify or correct the award is made, "[u]pon application of a party, the Court shall confirm an award."

Moreover, N.C.Gen.Stat. § 1-567.18 provides that an appeal taken from an order confirming an arbitrator's award shall be taken in the manner and to the same extent as from orders in a civil action. Without doubt, an appeal taken two and one-half years after entry of the order is not timely.

Therefore, the final question to be determined on this appeal is whether the portion of the judicially confirmed arbitrator's award concerning support of plaintiff-appellant may be modified after the statutory time periods for modifying the award and for appealing the confirmation order have expired. We hold it cannot.

The 18 October 1976 order approving the parties' consent to arbitration, quoted previously, was a consent judgment.

A consent judgment is the contract of the parties entered upon the court records with the approval and sanction of a court of competent jurisdiction. It depends for its validity upon the consent of both parties, without which it is void. "A judgment or decree entered by consent is not a judgment or decree of the court, so much as the judgment or decree of the parties, entered upon its records with the sanction and permission of the court, and being the judgment of the parties which cannot be set aside or entered without their consent." [Ellis v. Ellis, 193 N.C. 216, 219, 136 S.E. 350 (1926), quoted in Holden v. Holden, 245 N.C. 1, 8, 95 S.E.2d 118 (1956).]

2 R. Lee, N.C. Family Law § 149 at 217 (4th ed. 1980).

"A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties." Bland v. Bland, 21 N.C.App. 192, 195, 203 S.E.2d 639, 641 (1974). This Court is not bound by the "four corners" of a consent judgment, but the judgment should be interpreted in light of the surrounding controversy and purposes intended to be accomplished by it. Price v. Horn, 30 N.C.App. 10, 226 S.E.2d 165 (1976), cert. denied, 290 N.C. 663, 228 S.E.2d 450 (1976).

Roberts v. Roberts, 38 N.C.App. 295, 300, 248 S.E.2d 85 (1978).

Appellant does not contend that her consent to the agreement to submit the case to arbitration was in any way invalid. The second numbered paragraph of the consent order states the intent of the parties in entering into the agreement as follows: "[i]t is the intent and purpose hereof that the said arbitrator is fully authorized and empowered to bring this controversy to a conclusion and ... his report shall constitute the final and binding decision with respect to this case." The consent order also states "[t]he arbitrator's report in this case shall be final and binding on all parties." We believe that a valid agreement to arbitrate the issue of spousal support should be accorded the same effect as an agreement between spouses setting forth the amount of such support. In North Carolina, by statute, a valid separation agreement providing for the separate support of a spouse, so long as it is fully performed, will bar a subsequent action for alimony, alimony pendente lite and counsel fees. N.C. Gen.Stat. § 50-16.6(b). This was also the rule in North Carolina prior to the enactment of this statute in 1967. 2 R. Lee, N.C. Family Law § 148 (4th ed. 1980). The rationale for this rule is that a dependent *749 spouse's right to support is a property right which may be released by contract. Such a contract may not be ignored or set aside by a court without consent of the parties. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235 (1962); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963). The same rationale applies to an agreement to arbitrate the issue of spousal support.

For the reasons stated above, we affirm the action of the trial court.

Affirmed.

CLARK and HILL, JJ., concur.

NOTES

[1] For a discussion of the arbitrability of various issues in domestic law, see Comment, The Enforceability of Arbitration Clauses in North Carolina Separation Agreements, 15 Wake Forest L.Rev. 487 (1979).

[2] The binding effect of such agreements on the courts is discussed infra.