Rose v. Rose

Annotate this Case

310 S.E.2d 626 (1984)

Lillian H. ROSE v. Julian B. ROSE.

No. 828DC1263.

Court of Appeals of North Carolina.

January 17, 1984.

*628 Everett & Womble by Timothy I. Finan, Goldsboro, for plaintiff-appellee.

Hulse & Hulse by Donald M. Wright, Goldsboro, for defendant-appellant.

VAUGHN, Chief Judge.

It is now recognized in North Carolina that a contractual obligation to pay support arising out of a separation agreement which has not been incorporated into a court order may be equitably enforced by an order of specific performance enforceable through contempt proceedings. Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979); McDowell v. McDowell, 55 N.C.App. 261, 284 S.E.2d 695 (1981). The issue in this case is whether defendant's contractual obligation to make monthly payments for a period of five years arising out of a property settlement provision of a separation agreement not incorporated into a court order was properly enforced by an order of specific performance. Defendant contends that the trial court order of specific performance in this matter constituted reversible error.

A marital separation agreement is generally subject to the same rules of law regarding its enforcement as any other contract. Moore, supra. To be entitled to the equitable remedy of specific performance, therefore, plaintiff must establish the inadequacy of her legal remedy. Id. In the instant case, the separation agreement specified that defendant would pay plaintiff $100 per month for thirty-nine months, such sum to be drafted from and against his monthly retirement check. At trial, the parties stipulated that plaintiff was entitled to a judgment on the theory of anticipatory breach for the entire amount of $39,000.00. Our inquiry is whether this remedy would adequately compensate plaintiff.

The question of adequacy is one of fact, to be analyzed and determined in each case. Munchak Corp. v. Caldwell, 301 N.C. 689, 273 S.E.2d 281 (1981). It is not enough that there is some remedy at law; equity will intervene if the legal remedy is not as efficient and practical to meet plaintiff's needs. Id. We note that this case differs from past cases in which we have allowed specific performance where a plaintiff would otherwise have to bring successive lawsuits or wait until defendant's death to bring a suit in order to collect a money judgment. See Moore, supra; Lalanne v. Lalanne, 52 N.C.App. 558, 279 S.E.2d 25 (1981). In this case, plaintiff's damages were ascertainable in total. Nevertheless, we find the equitable remedy of specific performance to be the most practical and efficient means of compensating plaintiff.

There is no general formula for determining when a legal remedy is inadequate. However, there are some common patterns in the cases. The legal remedy is usually inadequate, and the equitable remedy granted, in cases like these: ... (3) The plaintiff is entitled to either money or certain performance by the defendant. Money, recoverable at law, would be an entirely adequate remedy, but the defendant is insolvent and it is not collectable. However, the defendant is still capable of rendering the performance to which the plaintiff is entitled as an alternative to the money. Equity may be willing to order the performance.

D. Dobbs, The Law of Remedies, 2.5 (1976). Defendant, though insolvent, was capable of rendering the performance for which the parties had contracted.

Defendant argues that allowing specific performances in this case will lead to unwarranted orders of specific performance in cases involving insolvent, defaulting debtors. Our decision today does not go that far. Mere insolvency of a debtor does not show the inadequacy of the remedy at law so as to invoke specific performance.

Defendant was not an ordinary debtor and the separation agreement involved herein was more than a mere agreement for the payment of money. As has *629 been said by our sister court, such agreement was "a complete property settlement between the parties, under the terms of which defendant agrees to perform certain positive acts and plaintiff, in turn, releases defendant from further claims or demands." Burke v. Burke, 32 Del.Ch. 320, 327, 86 A.2d 51, 54 (1952). In return for plaintiff's consideration, defendant agreed to "make the necessary arrangements to have said $100.00 a month payment drafted from and against his retirement check on a monthly basis to insure the payment ..." A damage award in this case, defendant being insolvent, will not compensate plaintiff nor compel defendant to perform his part of the bargain. The parties' contract had clear and definite terms. The remedy of specific performance, therefore, does no more than "compel [defendant] to do precisely what he ought to have done without being coerced by the court." McLean v. Keith, 236 N.C. 59, 71, 72 S.E.2d 44, 53 (1952), quoted in Munchak Corp., supra, 301 N.C. at 694, 273 S.E.2d at 285.

The Court ordered:

2. That the Defendant will specifically perform paragraph 4.(b) of the Separation Agreement between the parties by taking all necessary steps to have said $100.00 per month payment drafted from and against his retirement check on a monthly basis to insure the total payment of $3,900.00.

That is specifically what defendant contracted to do. It lies within his present means. He has only to sign the papers he agreed to sign. The quoted portion of the order is manifestly correct and defendant ignores it at his peril.

Affirmed.

WELLS and JOHNSON, JJ., concur.