Martin v. Martin

216 S.E.2d 456 (1975) 26 N.C. App. 506

Shirley R. MARTIN
v.
Fred D. MARTIN.

No. 7526DC286.

Court of Appeals of North Carolina.

July 2, 1975.

Scarborough, Haywood & Merryman by Charles B. Merryman, Jr., Charlotte, for plaintiff-appellee.

Sigmon, Clark & Mackie by William R. Sigmon, Hickory, for defendant-appellant.

HEDRICK, Judge.

This appeal turns on the interpretation to be given the following provision of the consent judgment entered on 1 October 1969: ". . . pay, or cause to be paid, into the Office of the Clerk of Superior Court for Mecklenburg County, North Carolina, the sum of One Hundred ($100.00) Dollars per month each and every month for a period of (5) years. Said payments are to be made at the rate of Fifty ($50.00) Dollars on the 1st and Fifty ($50.00) Dollars on the 15th day of each and every month beginning on the 1st day of October, 1969, and a like and similar payment on the 1st and 15th day of each and every succeeding month for a period of five (5) years. It is understood and agreed by the parties hereto that said payments are to be made not later than the 1st and 15th day of each and every month. That the aforesaid payments are made for the use and benefit and as alimony for the plaintiff;"

Defendant contends the payments were "alimony" and that his obligation to make such payments ceased when plaintiff remarried on 30 July 1971 pursuant to G.S. § 50-16.9(b), which provides:

"If a dependent spouse who is receiving alimony under a judgment or order of a court of this State shall remarry, said alimony shall terminate."

Plaintiff contends the trial court correctly interpreted the consent judgment when he concluded that the payments were not alimony but were "in the nature of a property settlement".

A consent judgment must be construed in the same manner as a contract to ascertain the intent of the parties. Bland v. Bland, 21 N.C.App. 192, 203 S.E.2d 639 (1974). Where the language of a contract is plain and unambiguous, the construction of the agreement is a matter of law, and the court may not ignore or delete any of its provisions, nor insert words into it, but must construe the contract as written, in the light of the undisputed evidence as to the custom, usage, and meaning of its terms. 2 Strong, N.C. Index 2d, Contracts § 12 (1967). The language in the consent order with respect to the defendant's obligation to pay to the plaintiff $100.00 each month for five years is clear and unambiguous and leaves no room for construction. It is clear the parties intended and the court ordered the defendant to pay alimony to the plaintiff at the rate of $100.00 per month for five years. Even if the payments had not been denominated alimony, the circumstances surrounding the entry of the consent judgment and the motives which prompted each party to consent to it, as can be gleaned from the record before us, dictate a conclusion that the payments were intended to be alimony. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967).

Therefore, defendant's obligation to make the payments ceased as a matter of law pursuant to G.S. § 50-16.9(b) when the plaintiff remarried, and the court erred in holding him in contempt for his failure to make the payments. The order appealed from is

Reversed.

BRITT and MARTIN, JJ., concur.