Greene v. Greene

336 S.E.2d 430 (1985)

Judy Cheek GREENE
v.
Parker Maurice GREENE.

No. 8518DC408.

Court of Appeals of North Carolina.

November 19, 1985.

Cahoon & Swisher by Robert S. Cahoon, Greensboro, for plaintiff-appellee.

Douglas, Ravenel, Hardy, Crihfield & Lung by G.S. Crihfield and James W. Lung, Greensboro, for defendant-appellant.

ARNOLD, Judge.

The sole issue before this Court is whether the trial court properly concluded that defendant is obligated to make alimony payments due plaintiff after 14 October 1983 pursuant to the terms of the separation agreement. Defendant appellant contends that the facts found by the trial court require a conclusion of law that plaintiff orally made an inter vivos gift to defendant of all payments due under the agreement. Defendant therefore argues that in view of this gift, the trial court erred in ordering him to make payments after 14 October 1983. We disagree.

In North Carolina the modification of the original separation agreement must be pursuant to the formalities and requirements of G.S. 52-10.1. 2 R. Lee, N.C. Family Law § 199 (4th ed. 1980); see also Smith v. Smith, 225 N.C. 189, 196, 34 S.E.2d 148, 152-153 (1945) (re modification of separation agreements pursuant to former G.S. 52-12). G.S. 52-10.1 requires that a separation agreement be in writing and acknowledged by both parties before a certifying officer, not a party to the contract, as defined by statute.

The trial court found that the attempt to make a gift of the alimony payments occurred in conversation between the parties, and defendant makes no objection to the court's findings. Such an attempt to orally modify the separation agreement fails to meet the formalities and requirements of G.S. 52-10.1. Therefore, the findings of the trial court would not support, much less require, a conclusion that the parties modified the separation agreement when plaintiff told defendant that she was making a wedding present of the payments under the agreement.

In short, the findings of the trial court support its conclusion that defendant is obligated to make the payments due plaintiff after 14 October 1983 pursuant to the terms of the agreement and the conclusions support the court's order. We therefore affirm the order of the trial court.

Affirmed.

WELLS and PARKER, JJ., concur.