Campbell v. Campbell
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-1133 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 JENESS J. CAMPBELL, Plaintiff, v. Wake County No. 09 CVD 17335 MELVIN E. CAMPBELL, Defendant. Appeal by defendant from order entered 3 May 2013 by Judge Lori G. Christian in Wake County District Court. Heard in the Court of Appeals 19 February 2014. Kurtz & Blum, PLLC, by Lynn A. Prather, and Sandlin Family Law Group, by Debra A. Griffiths, for plaintiff-appellee. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for defendant-appellant. BRYANT, Judge. The claims District for Court equitable has subject distribution matter and jurisdiction alimony, and over can incorporate those claims into a judgment for absolute divorce by the consent of both parties. A separation agreement, once -2incorporated by the trial court into a divorce judgment, can be enforced through the contempt powers of the court. On 31 August 2009, plaintiff Jeness J. Campbell filed for absolute divorce from defendant Melvin E. Campbell. That same day, plaintiff filed a separate action for a qualified domestic relations answered order and ( QDRO ).1 filed a pro On se 15 October answer and 2009, defendant counterclaim equitable distribution, alimony and attorneys fees. for Although defendant captioned his answer and counterclaim in response to plaintiff s complaint for absolute divorce, he listed on his response the file number as being 09 CVD 173334, which does not match the file number for either the divorce action (09 CVD 17335) or the QDRO action (09 CVS 17334). On 30 November 2009, plaintiff filed motions to dismiss, to strike, and for Rule 11 sanctions, alleging that defendant s counterclaim was an insufficient defense to absolute divorce and contained irrelevant material meant to harass plaintiff, and that defendant s counterclaim was meritless because defendant had already agreed to a mediated settlement agreement resolving 1 Plaintiff s QDRO action, 09 CVD 17334, sought an order regarding a $25,000.00 lump sum distribution to defendant from plaintiff s Duke University retirement plan. On 19 February 2010, the trial court issued an order granting plaintiff s QDRO action. -3all issues. judicial On 3 December 2009, plaintiff filed an affidavit of assignment and notice of hearing requesting an expedited hearing date for her motions to dismiss, to strike, and for Rule 11 sanctions. On 3 February 2010, a memorandum of mediated settlement agreement was filed. The settlement agreement contained provisions for the sale of the marital home in Brier Creek and a property in Kentucky; the division of bank, credit card, and retirement parties accounts; dog, Bella; custody and and visitation plaintiff s distributive award to defendant. rights the payments alimony for and That same day, the trial court entered a judgment for absolute divorce which incorporated the memorandum of settlement agreement and noted that with the exception of the pending QDRO, [a]ll other outstanding issues between the parties have been resolved pursuant to the mediated agreement. On 15 March 2010, the trial court entered an order dismissing all of plaintiff s motions and defendant s counterclaims. On 26 March 2012, plaintiff filed alimony and for an order to show cause. a motion to modify Plaintiff alleged that defendant had: relinquished his rights to the family dog, Bella; failed to abide by the trial court s order regarding the sale of -4the Kentucky property; experienced an improvement in his financial situation requiring a change in plaintiff s alimony payments; and that defendant has been frustrating the sale of the marital residence so that he can remain living there rentfree with owners Plaintiff association paying fees the mortgage, social and entire country taxes, club home dues. Plaintiff thereafter dismissed her motion to modify alimony. An amended and supplemental motion for an order to show cause was filed by plaintiff on 11 January 2013, and again on 22 January, alleging defendant had committed many acts that obstructed the sale of the marital home. In the motions to meantime, modify on alimony 10 January and to 2013, show defendant cause for filed contempt, alleging that plaintiff had refused to sign listing contracts with realtors, failed to reimburse defendant for repairs to the marital with home, the and family had dog. violated Defendant defendant s further visitation alleged that rights because plaintiff s financial situation had improved while defendant s financial situation simultaneously declined, defendant was entitled to an increase in alimony. On 5 February 2013, plaintiff filed a motion for Rule 11 sanctions against defendant, alleging that defendant s motions -5were meritless and filed to harass her. Defendant filed motions to compel and for sanctions on 12 February. plaintiff filed a motion to dismiss On 14 February, defendant s motions to compel and for sanctions and a motion for Rule 37 sanctions, again alleging that defendant s motions to compel and for sanctions were frivolous and made solely for the purpose of harassing her. On 18 March 2013, the trial court conducted a hearing on all motions filed by plaintiff and defendant. The trial court issued a contempt order on 2 May, holding defendant in civil contempt of motions for the Rule 3 February 11 and 2010 Rule 37 order2; denying sanctions; and plaintiff s dismissing defendant s motions to compel, modify alimony and for sanctions. Defendant appeals. __________________________ 2 In holding defendant in civil contempt of the 3 February 2010 order, the trial court made findings of fact that defendant willfully refused to sell the marital home by: failing to place the home on the market with a reputable real estate agent; listing the home at an unrealistic sale price; refusing to place for sale signs in the yard or a lock box on the door; making unreasonable demands and conditions on realtors wishing to show the home to potential buyers; and failing to keep the home in a saleable condition by not making required repairs, maintaining the yard, and keeping the home s temperature at a comfortable level. The trial court then noted that [i]t is clear that Defendant is willfully blocking the sale of the marital house and that Defendant s actions are willful and calculated to ensure that the house will never sell. -6On appeal, defendant argues that: (I) the trial court lacked subject matter jurisdiction over defendant s claims for alimony and equitable distribution; (II) the trial court lacked subject matter jurisdiction to incorporate the memorandum of mediated settlement agreement into the divorce complaint; and (III) defendant cannot be held in contempt of a void order. I. Defendant first argues that the trial court lacked subject matter jurisdiction over his claims for alimony and equitable distribution. We disagree. "[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." Yurek v. Shaffer, 198 N.C. App. 67, 75, 678 S.E.2d 738, 743 (2009) (citations omitted). Defendant contends that because plaintiff did not file for equitable distribution and alimony when she filed for absolute divorce and failed to join defendant s counterclaims for equitable distribution and alimony to her complaint for absolute divorce, the trial court lacked subject matter jurisdiction to adjudicate alimony divorce. defendant s when it ruled claims on for equitable plaintiff s distribution complaint for and absolute We disagree, as a review of the record indicates that -7defendant s counterclaims for equitable distribution and alimony were settled by the consent of both parties to the settlement agreement. Subject matter jurisdiction reserved to the District Court. over domestic is Sloan v. Sloan, 151 N.C. App. 399, 403, 566 S.E.2d 97, 100 (2002). In a divorce action, either party may bring a claim for alimony distribution. claims and/or equitable N.C. Gen. Stat. §§ 50-16.3(A)(a), 21(a) (2013). Plaintiff filed separate actions for absolute divorce and a QDRO. Defendant counterclaimed for equitable distribution, alimony and attorneys fees; the counterclaim contained a file number that did not match the file number of either action, but was otherwise tailored to respond to plaintiff s complaint for absolute divorce. In its 12 February 2010 order dismissing defendant s counterclaims, the Defendant s answer wrong had the trial case court number, noted but that it was clearly meant to be an answer to the Absolute Divorce Complaint by its contents, and that consented to integrate agreement for Equitable Defendant the parties Distribution judgment for absolute divorce. and Plaintiff mediated and Alimony . . . settlement with the The trial court also noted in its judgment for absolute divorce that Defendant had filed his -8own answer, indicating that the trial court considered defendant s counterclaims for equitable distribution and alimony at the time it entered judgment as to the divorce. As such, defendant s counterclaims for equitable distribution and alimony were considered in conjunction with plaintiff s complaint for absolute divorce by the trial court. Moreover, we note that as defendant s counterclaim was filed prior to the 3 February 2010 order granting plaintiff s complaint for absolute divorce on 15 October 2009, the trial court had jurisdiction over defendant s counterclaim for equitable distribution pursuant to N.C. Gen. Stat. § 50-11(e) (2013). COA07-665, 2008 N.C. App. See Stark v. Ratashara-Stark, No. LEXIS 41, at *5 (Jan. 15, 2008) (holding that where the plaintiff s claim clearly preserves the equitable distribution claim prior to the . . . entry of judgment of absolute divorce, the trial court had jurisdiction to hear plaintiff s claim for equitable distribution. ). Defendant s argument is overruled. II. Defendant next contends the trial court lacked subject matter jurisdiction to incorporate the settlement agreement into the divorce order. We disagree. -9"A universal proceedings of principle a court matter are a nullity." as old without as the law jurisdiction is of that the the subject Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964) (citation omitted). "[O]ur Supreme Court [has] rule fashioned incorporated a 'one-size settlement fits all' agreements in the applicable area of to domestic law," Fucito v. Francis, 175 N.C. App. 144, 148, 622 S.E.2d 660, 663 (2005), which approved by January 1983] judgments." the court will be that as "[a]ll judgments treated . separation of the . . court as agreements [after court 11 ordered Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). consent states judgments, [C]ourt ordered separation agreements, as are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case." Id. A separation agreement can be kept separate and under the laws of contract only where the parties agree to not submit their separation agreement to the trial court. Id. Defendant contends the trial court lacked subject matter jurisdiction to incorporate the settlement agreement into the absolute divorce because the agreement lacks any indication that it was to be incorporated into the divorce judgment, and the -10trial court failed to make any findings of fact that the parties stipulated to the incorporation. support defendant s contention. for absolute outstanding divorce, issues the However, the record does not In its 3 February 2010 judgment trial between the court parties noted have that been pursuant to a mediated agreement by both parties. all resolved The trial court then made the following handwritten conclusion of law: 4. The parties[ ] mediated Settlement Agreement dated February 3, 2009 and contain[ing] the parties[ ] incorporated by reference. separation agreement is The settlement agreement, which was signed by defendant and his counsel, clearly states that 5. The parties waive conclusions of the inclusion law in the of any formal memorialize this Memorandum. findings of judgment/order fact which and will Moreover, in his 10 January 2013 motions for an order to show cause and modify alimony, defendant acknowledged that the mediated agreement including provisions for equitable parties on distribution February 3, and 2009 alimony and that was executed Said by the agreement was incorporated into the parties divorce by agreement on February 3, 2010 . . . . As such, defendant agreed in the settlement agreement to be bound by its terms, including its incorporation into the divorce judgment. -11Additional evidence supports this incorporation, as in its 12 March 2013 order dismissing defendant s counterclaims and plaintiff s motions, the trial court made the following finding of fact: Defendant and Plaintiff . . . consented to integrate the parties Distribution mediated and settlement Alimony with agreement the judgment for Equitable for absolute divorce. The trial court then made the following conclusion of law: That 3. the parties mediated agreement settling the matters of alimony and equitable distribution shall be attached to and incorporated with the parties Divorce Judgment. further note plaintiff s that in complaint the 3 February for absolute 2010 hearing divorce, We regarding defendant acknowledged that he had signed the settlement agreement and that the agreement represents the entire agreement parties with respect to the issues addressed herein. of the Defendant also did not object to the trial court s incorporation of the settlement agreement into the judgment for absolute divorce at the time the trial court proposed to do so. [T]here is a presumption that provisions in a separation agreement or consent judgment made a part of the court's order are separable . . . . However, where the parties include unequivocal integration . . . clauses in the agreement, this language governs. Hayes v. -12Hayes, 100 N.C. (citations agreement App. 138, 147, 394 As the language omitted). clearly indicates an S.E.2d intention of by 675, 680 the both (1990) settlement parties to integrate this agreement into the divorce judgment, the trial court had subject incorporation. matter jurisdiction to make this See id. at 149, 394 S.E.2d at 681 ( Clearly, the parties presented their Agreement to the court for its approval, and this submission is sufficient to bring it within the principles applied in this opinion. ). Defendant s argument is overruled. III. Thirdly, defendant argues that he cannot be held in contempt of court because the 3 February 2010 order is void. We disagree. As an order of the court, the court adopted separation agreement is enforceable through the court's contempt powers. This is true for all the provisions of the agreement since it is the court's order and not the parties' agreement which is being enforced. Walters, 307 N.C. at 385, 298 S.E.2d at 341. [A] party to a consent order like the one before us may move for the trial court to exercise its contempt powers to enforce that consent order. Contempt, however, may only be found upon a showing that the party in noncompliance with the consent order acted -13willfully, and was capable of complying with the consent order. Holden v. Holden, ___ N.C. App. ___, ___, 715 S.E.2d 201, 208 (2011). As discussed in Issues I and II, the trial court had subject matter jurisdiction to issue the 3 February 2010 order; therefore, the order was not void. In holding defendant in contempt of the 3 February 2010 order, the trial court made numerous findings of fact that defendant acted willfully in violating the terms of the order and that defendant had the financial resources available to comply with the order. trial court then made the following conclusions of The law: Defendant has willfully refused to comply with the February 3, 2010 Order[;] Defendant is in civil contempt of the February 3, 2010 Order[;] and Further violation of the . . . order . . . shall result in Defendant being ordered into custody of the Wake County Jail by this Court. As such, the trial court made the appropriate findings of fact and conclusions of law required to hold defendant in contempt. Defendant s final argument is overruled. Affirmed. Judges STEPHENS and DILLON concur. Report per Rule 30(e). -14-
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