Cecil v. Cecil

296 S.E.2d 329 (1982)

Robert C. CECIL, Plaintiff, v. Mary A. CECIL, Defendant.

No. 8119DC1257.

Court of Appeals of North Carolina.

October 19, 1982.

*330 Robert M. Davis, Salisbury, for plaintiff-appellee.

Mona Lisa Wallace, Salisbury, for defendant-appellant.

*331 WEBB, Judge.

This appeal brings to this Court a question of the modification by the court of support provisions of a separation agreement after the parties are divorced. This question has been the subject of many cases. See White v. White, 296 N.C. 661, 252 S.E.2d 698 (1979); Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964); Allison v. Allison, 51 N.C.App. 622, 277 S.E.2d 551 (1981); Baugh v. Baugh, 44 N.C. App. 50, 260 S.E.2d 161 (1979); Britt v. Britt, 36 N.C.App. 705, 245 S.E.2d 381 (1978); see also Sharp, Divorce and The Third Party: Spousal Support, Private Agreements, and the State, 59 N.C.L.Rev. 819 (1981). In this state, the rule is stated that if a divorce decree or a consent judgment merely approves and sanctions the support payments which the parties have agreed in a separation agreement will be paid to a spouse, then the separation agreement is simply a contract approved by the court. It cannot be modified by order of the court. If the court adopts the separation agreement as its own determination of the rights and obligations of the parties and orders the support payments to be made, the separation agreement becomes a decree of the court. The support payments may then be modified upon a showing of a change in circumstances, unless the support provision and the other provisions of the separation agreement constitute reciprocal consideration for each other so that the agreement would be destroyed by a modification of the support provision.

We believe that under the above cited cases, particularly Levitch, the separation agreement in this case was merged into the divorce decree and became a decree of the court. We believe we are bound by White to hold that there must be a hearing to determine whether the provisions of the separation agreement are separable or reciprocal. In White the separation agreement merged into the judgment provided that the husband would pay the wife $1,000.00 in a lump sum and $100.00 per month for support, and that he would convey his ½ interest in their home to her. The agreement did not state whether the provisions were reciprocal or separable. Our Supreme Court held there should be a hearing to determine the intention of the parties as to the reciprocity or separability of the provisions for support payments and property division. We believe this case is so similar that we are bound by White to reverse and remand for a hearing as to whether the support payments and the agreement by the plaintiff to sell his interest in their home to the defendant were reciprocal or separable. The burden of proof will be on the plaintiff to prove by the preponderance of the evidence that they were reciprocal. The opinion in White recites the factors which may be considered in reaching a decision.

The plaintiff argues that the judge who signed the consent order was the same judge who denied the defendant's motion and that it was obvious it was his intention that the order not be modifiable. It is not the intention of the judge but the intention of the parties as to separability or reciprocity which is crucial. The separation agreement in this case provides that it is a permanent settlement and each of the parties shall live as if they "had never been married to each other" and the plaintiff argues that this means that the parties intended the obligations arising from the marriage were permanently settled. If the court should find the support provision of the separation agreement is separable from the other provisions, it became alimony when it was adopted by the court; whatever the intention of the parties at the time the separation agreement was signed, the provision for alimony is subject to modification. There was not a finding that the defendant was a dependent spouse. This is a factor to be considered but it is not determinative.

We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VAUGHN and WELLS, JJ., concur.