Moore v. Moore

CLARK, Judge.

Plaintiff contends that the consent judgment imposed a fiduciary duty on the defendants Companies and Plan, requiring them to disapprove any application made by Benton Moore for withdrawals in excess of the $22,645.37 annual alimony payments and that by allowing defendant Moore to make excessive withdrawals in 1973 and 1974, defendants violated their fiduciary duty because these withdrawals depleted the funds that should have been kept available for payment of her alimony.

It is noted that the consent judgment, though entered 14 February 1973, provided for withdrawals of $20,000.00 in 1971, $21,880.53 in 1972, and the balance in ten equal annual installments of $22,645.37 each. The record discloses that defendant Moore had made prior voluntary withdrawals of $8,000.00 in 1971 and $41,880.53 in 1972. Yet the judgment did not mention the 1972 withdrawal which was well in excess of the 1972 alimony payment, nor did the judgment provide for limiting the amount of the annual withdrawals thereafter to the amount of the alimony payments. The defendant Moore’s voluntary withdrawals of funds amount to the total sum of $148,564.62. The value of his vested interest in the trust on 31 December 1974 was $401,835.46. Thus, the total of his prior withdrawals, based upon the 31 December 1975 valuation of his vested interest, exceeded 25% of such value. This excessive withdrawal is explained by the fact that the value of his vested interest on 31 December 1973 was $540,406.66 but thereafter declined with the market value of Lowe’s Companies, Inc. common stock, which apparently made up a substantial part, if not all, of the trust assets. Though the judgment may by implication impose on defendant Moore the duty to safeguard the interests of the plaintiff by withdrawing from the Plan annually only the sum. due as alimony, the judgment when construed contextually does not deprive the trustees of their control of the Plan assets or their disposition of funds to beneficiaries according to the prescribed rules.

The consent judgment of 14 February 1973 amended a prior separation agreement and was in substance a contract between plaintiff and defendant Moore, both of whom signed it, which was approved and signed by the trial judge. Though defendants Companies and Plan at the time were parties-defendant to the proceeding, they did not sign the judgment. A consent judgment rendered without the consent of a party will be held inoperative in its entirety. Lynch v. Loftin, 153 N.C. 270, 69 S.E. 143 (1910). “The agreements of the parties are reciprocal, and each is the consideration for the other.” Overton v. Overton, 259 N.C. 81, 37, 129 S.E. 2d 593, 598 (1963). The judgment imposed upon the defendant Moore the personal obligation of paying to plaintiff Moore an agreed sum each year; the payments were to be made from funds of the Profit-Sharing Plan and Trust when the funds were available to him; and if not available, “the amount owed . . . shall continue to be an obligation from him to Wife, ...” The defendant Companies is not bound by the terms of the judgment since they did not consent. We do not agree with plaintiff’s assertion that defendants Companies and Plan are fiduciaries for plaintiff and under the duty of safeguarding her interests. On the contrary, their primary duty was to all the beneficiaries of the Profit-Sharing Plan and Trust, and in the performance of this duty they must retain control of the assets, dispense funds, and otherwise administer the trust according to their prescribed rules. The consent judgment so implies.

The judgment appealed from is

Affirmed.

Judges Vaughn and Martin concur.