Mitchell v. Mitchell , 270 N.C. 253 ( 1967 )

154 S.E.2d 71 (1967) 270 N.C. 253

George Cree MITCHELL
v.
Geraldine Edwards MITCHELL.

No. 547.

Supreme Court of North Carolina.

May 3, 1967.

Boyce, Lake & Burns, Raleigh, for plaintiff appellee.

Harrell & Mattox, Greenville, for defendant appellant.

SHARP, Justice.

A contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529. When, however, a court having jurisdiction of the parties and the cause of action, adjudges and orders the husband to make specified payments to his wife for her support, his wilful failure to comply with the court's judgment will subject him to attachment for contempt notwithstanding the judgment was based upon the parties' agreement and entered by consent. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. See Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370. This is true, "not because the parties have agreed to it, but because the judgment requires the payment." Sessions v. Sessions, 178 Minn. 75, 226 N.W. 211, 701. When the parties' agreement with reference to the wife's support is incorporated in the judgment, their contract is superseded by the court's decree. The obligations imposed are those of the judgment, which is enforceable as such. Adkins v. Staker, 130 Ohio St. 198, 198 N.E. 575; accord, Gloth v. Gloth, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700. In such a case the wife has the option of enforcing the judgment by a rule of contempt or by execution, or both.

Plaintiff argues, however, that the court's judgment that he pay defendant $150.00 a month for ten years, or a total of $18,000.00 if she fails to remarry, is not an award of alimony but merely a contract between the parties to which the court gave its approval. The answer to this argument is that the judge went further than merely putting his stamp of approval on the parties' contract. He could have manifested approval just by making the certificate required by G.S. § 52-6 and G.S. § 47-39. Instead, he entered a judgment in which he ordered plaintiff to make the payments which he had agreed to make and which defendant had agreed to accept. When the court incorporated the agreement in its mandate, its approval was implicit, but, having made the order, its mandate cannot be downgraded to mere approval.

Plaintiff urges that since the monthly payments which he agreed to make to his wife were not denominated alimony in the judgment, they cannot be construed as such. The provision that defendant's remarriage will relieve plaintiff of the obligation to make further payments, Fox v. Fox, 253 P.2d 1030 (Cal.Dist.Ct.App., 2d Dist., Div. 1), the circumstances surrounding the entry of the judgment, and the motives which prompted each party to consent to it, render this contention feckless. There is no suggestion in the transcript that there had been a property settlement between the parties and that the monthly payments were to reimburse defendant for property she had transferred or released to plaintiff. In order to secure his divorce in June 1966, plaintiff had to overcome the defense which defendant had alleged to his action and the cross action, both of which were based on his alleged abandonment of her. To do this, he had to obtain a jury verdict in his favor or a consent judgment from the court. He chose the latter as the safer course.

Although Judge Brock had sustained plaintiff's demurrer to the cross action (the correctness of that ruling is not before us), defendant's first statement of it reveals no reason to suppose that she could not allege a cause of action under G.S. § 50-16 which would withstand demurrer. The court had allowed her thirty days in which to do so. Defendant's motion for alimony pendente lite and counsel fees was still before the court, which had general jurisdiction of the parties and their marital rights. Judge Brock could have vetoed the proposed decree. Instead, he adopted it and made it his own. The order that plaintiff pay defendant the sum of $150.00 on 5 June 1966 and on the 5th day of each month thereafter, through 5 May 1976, did not denominate the payments alimony or total the installments, yet the award was indubitably alimony in gross or "lump sum alimony," which is fundamentally the award of a definite sum of money for the wife's support and maintenance. 27A C.J.S. Divorce § 235 (1959). "Ordinarily, in the absence of express statutory authority or the consent of the parties, a court cannot award alimony in gross in lieu of a periodical allowance." 24 Am. Jur.2d, Divorce and Separation § 615 (1966). North Carolina has no statute authorizing the court to award alimony in gross, but such alimony may be awarded with the consent of the parties. This was done in Taylor v. Taylor, 93 N.C. 418.

By and with the consent of the parties, the court may award permanent alimony as a sum in gross to be paid in periodic installments which shall terminate upon the wife's remarriage. 24 Am.Jur. 2d, Divorce and Separation § 616 (1966). As to the power of the divorce court to modify an award of alimony in gross, where no right to amend was reserved, see Annot., Alimony-Modifying Decree, 127 A.L.R. 741, 743-744; 71 A.L.R. 723, 730-734; 24 Am. Jur.2d, Divorce and Separation § 668 (1966).

Having entered its judgment awarding alimony, the court below had the power to enforce its order by contempt proceedings. 2 Lee, N. C. Family Law § 166 (3d Ed., 1963) and cases therein cited. The court would demean itself if it entered a decree providing that the husband support and maintain the wife upon terms which he himself had suggested (and to which he gave his written consent), then allowed him to get an absolute divorce upon the strength of that decree, and—upon his wilful failure to comply with its terms—announced that it was powerless to enforce its judgment by contempt proceedings. Defendant, in reliance upon the judgment which she now seeks to enforce, withdrew her defense to plaintiff's divorce action. He thereby secured an absolute divorce, which put it beyond the power of the court thereafter to enter an order for alimony. G.S. § 50-11. To say now that, although the court ordered the payments, its judgment is nothing more than a contract between the parties and that defendant must—as plaintiff asserts—bring an action for breach of contract in order to collect the monthly payments it decreed, will not do.

This judgment was not worded with the care which this Court, in Bunn v. Bunn, supra, pointed out that counsel for the wife should use in dealing with similar situations. Nevertheless, we hold that the judgment will support an attachment as for contempt if it be shown to the satisfaction of the court that plaintiff has wilfully failed to make the payments ordered. On that question, no evidence has yet been heard.

Reversed.

LAKE, J., took no part in the consideration or decision of this case.