Doub v. Doub

315 S.E.2d 732 (1984)

Anna B. DOUB
v.
Eugene M. DOUB.

No. 8321DC741.

Court of Appeals of North Carolina.

June 5, 1984.

Morrow & Reavis by John F. Morrow, Winston-Salem, for plaintiff-appellee.

Bruce C. Fraser, Winston-Salem, for defendant-appellant.

EAGLES, Judge.

I.

Defendant's first assignment of error is to the trial court's refusal to allow defendant to put on his evidence of changed circumstances. Defendant contends that this action is in effect one to enforce a court order for the payment of alimony and is, therefore, modifiable by the court. We do not agree.

Plaintiff wife's action in this case was clearly an action in contract to enforce the terms of the 1978 separation agreement. Because the 1978 separation agreement was incorporated by reference into the 1978 court order granting defendant an absolute divorce, defendant contends that the provision for alimony payment is part of a court order and thus modifiable, pursuant to G.S. 50-16.9. We find, however, that the alimony provisions here fall within the following exception as set out by our Supreme Court.

Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of the statute and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other.

Rowe v. Rowe, 305 N.C. 177, 184, 287 S.E.2d 840, 844 (1982). Here, the provisions for alimony payments are included in one subsection of an eleven part section in which the parties detail a "division and settlement of marital rights and remaining properties." The provisions for alimony payments to plaintiff wife and the other property distributions as provided by the 1978 separation agreement are clearly reciprocal and therefore not separable or modifiable.

Defendant urges that Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), is dispositive. It announces a new rule that every court approved separation agreement is to be considered as part of a court ordered judgment and is thus modifiable and enforceable by the contempt powers of the court. Id. at 386, 298 S.E.2d at 342. We note that the rule announced in Walters applies only to judgments that were entered after 11 January 1983 and therefore does not affect the 1978 judgment in this case. Even if the Walters decision were construed to apply to a 1978 judgment, we believe that it would not control here. In this case, plaintiff has elected to sue defendant for breach of contract instead of invoking the contempt powers of the court to enforce the court ordered separation agreement. We do not read Walters as depriving plaintiff of the option of electing to sue for breach of contract. While defendant is free to present evidence of his change of circumstances by filing a motion in the cause to modify the alimony provisions of the 1978 court order, this action is based on breach of contract and evidence of changed circumstances is not relevant. The trial judge, therefore, did not err in excluding defendant's evidence of changed circumstances.

II.

Defendant husband also assigns as error the trial court's denial of his motions to amend his answer. Rule 15(a) of the North Carolina Rules of Civil Procedure states that leave to amend shall be freely given when justice requires. A motion to amend is addressed to the sound discretion of the trial judge, and denial will be upheld on appeal absent a clear showing of an abuse of discretion. Edwards v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979). We find no abuse of discretion in the denial of either of defendant's motions to amend.

Defendant's first motion to amend was for the purpose of alleging a change in circumstances. In this action for breach of contract, to have allowed defendant to amend his answer to allege a change of circumstances would have allowed him to assert a new legal theory. We hold that the filing of this motion nine months after the complaint was filed and one week before the trial was to begin would cause undue delay and would unduly prejudice the plaintiff. See Henry v. Been, 310 N.C. 75, 310 S.E.2d 326 (1984). There was therefore no abuse of discretion in the trial judge's denial of defendant's first motion to amend.

Defendant's second motion to amend his answer was for the purpose of making more specific the original answer's allegation that plaintiff wife had breached the contract. This issue had been adequately raised in defendant's original pleadings. Defendant was already entitled to introduce his evidence of specific instances of plaintiff wife's breach. There was no need to amend defendant's answer in this way and no abuse of discretion in the trial judge's denial of this motion to amend by defendant.

III.

We have carefully considered defendant's remaining assignments of error and find them to be without merit.

Affirmed.

VAUGHN, C.J., and BRASWELL, J., concur.