Henderson v. HendersonAnnotate this Case
298 S.E.2d 345 (1983)
Alice Jean HENDERSON v. Gary M. HENDERSON.
Supreme Court of North Carolina.
January 11, 1983.
*349 Goldberg & Anderson by Frederick D. Anderson, Wilmington, for defendant-appellant.
W.G. Smith by Bruce H. Jackson, Jr., Wilmington, for plaintiff-appellee.
Defendant-appellant presents only one issue on appeal, cast in the following language:I. Does a wife's failure to allow a husband visitation with his son, excuse husband's duty to pay periodic support payments to wife under a consent judgment, which specifically states that each party's respective duties thereunder are interdependent and not independent, that it is an integrated agreement of the parties, that it may not be modified without the express written consent of the parties, and that it is a full and final settlement of all property and marital rights between the parties?
In so styling the issue, defendant places this Court in the anomalous position of having to decide a question of law based on an underlying assumption, the non-modifiability of the alimony-type provision. Because the assumption and any legal implications arising from it are in no way pertinent to our holding, our discussion will focus only on the enforceability issue. The modifiability issue is not determinative of the question before us. Thus, we have purposely not quoted or summarized the provisions of the judgment relating to the periodic payments for the support of the wife because the nature of those payments as "alimony" or as part of an "integrated settlement" or their "modifiability" or "non-modifiability" does not affect their enforceability by contempt as court-ordered payments under a court-adopted consent judgment. It is perhaps because of some misinterpretation of the language in some of our prior opinions that attorneys repeatedly argue to this Court that if the support provisions of a court-ordered consent judgment are "modifiable" the judgment is enforceable by contempt but if they are "not modifiable" the judgment is not enforceable by contempt. We wish to dispel any such notion and to make it clear now that modifiability and enforceability are not interdependent.
In Bunn v. Bunn, 262 N.C. 67, 70, 136 S.E.2d 240, 243 (1964), we stated that "any judgment which awards alimony, notwithstanding it was entered by the consent of the parties, is enforceable by contempt proceedings should the husband wilfully fail to comply with its terms. If the judgment can be enforced by contempt, it may be modified and vice versa." (Emphasis added). In White v. White, 296 N.C. 661, 665, 252 S.E.2d 698, 701 (1979), we stated that a court-adopted consent judgment "is both modifiable and enforceable by the court's contempt power." (Emphasis added). White, like Bunn, involved the modification of a provision which had been determined to be "alimony" and thus modifiable. The rule is more clearly stated in our most recent decision of Rowe v. Rowe, 305 N.C. 177, 183, 287 S.E.2d 840, 844 (1982), which points out that when "the court adopts the agreement of the parties as its own and orders the supporting spouse to pay the amounts specified as alimony ... [the] order is enforceable by the court's contempt powers." This Court further noted that "[o]rdinarily it is also modifiable." Id. (Emphasis added). We read the language in these cases as establishing a rule which merely states that a payment of "alimony" in a court-ordered judgment is enforceable by civil contempt, and, as we stated in Rowe, it is also modifiable by virtue of our holding in Bunn, and now as a result of G.S. § 50-16.9. We have never held, nor do we now hold, that the court's power to enforce its orders in a consent judgment is dependent upon whether the provision is subject to modification. It was unnecessary for the Court of Appeals to determine or even discuss the issue of the modifiability of Judge Lambeth's order.
A court-adopted consent judgment in a domestic setting has been variously characterized as a species of contract which has been superseded by the court's adoption of the agreement between the parties "as its own determination of their respective *350 rights and obligations ...." Bunn v. Bunn, 262 N.C. at 69, 136 S.E.2d at 241. See Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840; White v. White, 296 N.C. 661, 252 S.E.2d 698; Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). So far as the support payments to the wife are concerned, the agreement of the parties becomes an order of the court, thus losing its identity as a contract.
Once the court adopts the agreement of the parties and sets it forth as a judgment of the court with appropriate ordering language and the signature of the court, the contractual character of the agreement is subsumed into the court-ordered judgment. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). At that point the court and the parties are no longer dealing with a mere contract between the parties.
The power of the court to enforce its judgment is no less and no greater for a court-adopted consent judgment than for a judgment resulting from a jury verdict in a hotly contested adversary proceeding. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961); Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576 (1942).
It is clear beyond any question that Judge Lambeth's judgment of 13 March 1980 is a court-adopted consent judgment. As such, the court may, upon a showing of willful failure to comply, enforce such judgment by civil contempt. A court-ordered consent judgment is enforceable by civil contempt notwithstanding the fact that it contains unequivocal language that it is non-modifiable. Hence here Judge Lambeth, in his subsequent order of 15 December 1980, acted within his authority in ordering both parties to comply with the 13 March 1980 judgment.
Civil contempt is based upon acts or neglect constituting a willful violation of a lawful order of the court. A failure to obey an order of the court cannot be punished by attachment for civil contempt unless the disobedience is willful. It is well settled that one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. See G.S. § 5A-21. The trial court must find as a fact that the defendant presently possesses the means to comply. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).
In finding of fact number 8, Judge Lambeth found that defendant's failure to make the payments in question "has been willful and without just cause or excuse." In addition, finding of fact number 10 is devoted exclusively to the issue of ability to pay and willfullness of defendant's failure to pay:10. Defendant is an able-bodied man, employed as a pilot for Piedmont Airlines. Defendant is under no legal, mental or physical disabilities which precludes him from complying with the alimony provisions of the March 13, 1980, Judgment which Defendant consented to. The Defendant had the present ability to *351 comply with the alimony provisions of the March 13, 1980, Judgment when it was entered. There have been no change of circumstances as to the Defendant's ability to comply with said provisions since entry of the March 13, 1980, Order. Defendant has the present ability to comply with the alimony provisions but has willfully failed and refused to comply with the March 13, 1980, Judgment since June of 1980. Defendant is presently in arrears under said order for the months of July, August, September, October, November and one-half of December 1980. The total arrearage as of date of hearing is $2,750. Defendant is in willful contempt of court for failure to pay alimony as ordered in the judgment.
Such finding must of course be supported by evidence in the record. Our review of the record discloses that the finding of willfulness is unsupported by the evidence. No evidence was adduced at the hearing with respect to any assets or liabilities of the defendant, any inventory of his property, his present ability to work, nor even his present salary.
If, as here, the finding that the failure to pay was willful is not supported by the record, the decree committing defendant to imprisonment for contempt must be set aside. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391; Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867 (1955); Vaughan v. Vaughan, 213 N.C. 189, 195 S.E. 351 (1938); G.S. § 5A-21.
We agree with the author of the opinion of the Court of Appeals that there is insufficient evidence on the record of defendant's willful failure to comply. The Court of Appeals was correct in vacating the portion of Judge Lambeth's judgment holding defendant in contempt and ordering his confinement until the arrearages were paid and in remanding the case for further proceedings with respect to the willfulness of defendant's failure to pay.
MARTIN, J., took no part in the consideration or decision of this case.
CARLTON, Justice, concurring.
I concur in the majority holding, and the reasoning given in support, that a court's power to enforce a separation agreement set out in a consent judgment is not dependent upon whether the judgment is subject to modification. I cannot agree, however, that we "have never held" to the contrary. If we haven't, we have come awfully close. As the majority acknowledges, there is language in some of our earlier decisions which led to the understanding that provisions concerning modifiability and enforceability by contempt were interdependent. At any rate, the majority now lays that misunderstanding to rest.
EXUM, Justice, concurring in result.
I agree with the Court's holding that a consent judgment may be enforceable by contempt even though it is not modifiable. I cannot concur, however, with some of the language in the opinion which seems to say that once an agreement of the parties has been made a judgment of the court, i.e., has become a consent judgment, it loses the attributes accorded it as a contract, or as the majority puts it, it loses "its identity as a contract." As I have tried to show in my dissenting opinion in Walters v. Walters, filed this date, a parties' agreement made a judgment of the court is both a contract and a judgment. It is not either a contract or a judgment. The majority here and in Walters seems to think that consent judgments must be either contracts or judgments; and, having to choose, it prefers to treat them as judgments. Until these cases today, however, this Court has always recognized the dual nature of consent judgments. See my dissenting opinion in Walters, and cases therein cited. It is neither necessary, advisable nor in accordance with our precedents to choose judgment over contract or contract over judgment in order properly to resolve these cases. In the instant case, therefore, I would hold that this consent judgment, albeit not modifiable because it is in part a contract, is nevertheless enforceable by contempt because it is also in part a judgment.NOTES
 That is not to say that such a contract (separation agreement) may not eventually result in a judgment of the court which would be enforceable by contempt. The alimony provisions of a separation agreement are enforceable by a decree for specific performance without the necessity of a prior suit to recover money damages for arrearages. Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979). Willful failure to comply with the decree of specific performance could subject the offense to attachment for civil contempt. While when suit is brought for an order for specific performance of a separation agreement the burden rests on the party seeking the order to first allege and prove that he or she has performed the obligation under the contract, Whalehead Properties v. Coastland Corp., 299 N.C. 270, 261 S.E.2d 899 (1980), such is not the case in the action for civil contempt for failure to comply with a court-ordered consent judgment for the payment of alimony. Moreover, as defendant correctly points out, parties to a contract-type separation agreement may rely on the contract remedy of excused performance. Thus in Wheeler v. Wheeler, 299 N.C. 633, 263 S.E.2d 763 (1980), this Court held that one party's breach of a provision in a separation agreement excuses the other's performance under an agreement where the provisions were interdependent. Should it be the sole intention of the parties to contract between themselves and to rely solely on contract law for their rights and remedies under the agreement, they must make that decision prior to invoking the court's power to adjudicate their rights and order performance.