Davis v. Davis

PARKER, Judge.

In her first assignment of error, defendant contends the trial court erred in entering an order ex mero motu declaring portions of previous consent judgments null and void and unenforceable ab initio and in striking them. We agree.

We note preliminarily that this proceeding is not affected by the Supreme Court’s decision in Walters v. Walters, 307 N.C. 381, 298 S.E. 2d 338 (1983), because that case has only prospective application and has no effect on consent orders entered prior to 1983.

The principle is well-established that “[a] consent judgment is a contract between the parties entered upon the record with the approval and sanction of the court,” Coastal Production Credit v. Goodson Farms, 71 N.C. App. 421, 422, 322 S.E. 2d 398, 399 (1984), and “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, 195, 203 S.E. 2d 639, 641 (1974). “This Court is not bound by the ‘four corners’ of a consent judgment, but the judgment should be interpreted in light of the surrounding controversy and purposes intended to be accomplished by it,” Roberts v. Roberts, 38 N.C. App. 295, 300, 248 S.E. 2d 85, 88 (1978), and it is fundamental that “contract provisions should not be construed as conflicting unless no other reasonable interpretation is possible.” Lowder, Inc. v. Highway Comm., 26 N.C. App. 622, 639, 217 S.E. 2d 682, 693, cert. denied, 288 N.C. 393, 218 S.E. 2d 467 (1975).

Applying these principles, we conclude that the parties did not intend for plaintiffs payment of “all necessary and reasonable medical expenses incurred by defendant” to constitute alimony payments. Under this construction, all the contractual provisions quoted above can be read as being consistent with each other.

Paragraph four in the Deed of Separation is clearly an express waiver of alimony payments by defendant. At no point in any of these proceedings has plaintiff disputed the validity of the separation agreement, and so long as the separation agreement is performed, which it has been here, alimony claims are barred. G.S. 5046.6(b); 2 Lee, North Carolina Family Law, § 148 (4th Ed. 1980).

In the 13 June 1979 consent judgment the court found as fact “[t]hat there are no claims for support or alimony pending between the parties,” and ordered plaintiff to pay “all necessary and reasonable medical expenses incurred by the defendant.” Plaintiff asserts that the court had no authority to enter such an order, even upon the consent of the parties, because no such issue was raised by the pleadings. Our Supreme Court, in Edmundson v. Edmundson, 222 N.C. 181, 22 S.E. 2d 576 (1942) rejected a similar argument by quoting with approval this statement from the opinion in Keen v. Parker, 217 N.C. 378, 8 S.E. 2d 209 (1940):

It is generally held that provisions in judgments and decrees entered by consent of all the parties may be sustained and enforced, though they are outside the issues raised by the pleadings, if the court has general jurisdiction of the matters adjudicated. 222 N.C. at 186, 22 S.E. 2d at 580.

Therefore, with the consent of the parties, the trial court, which has general jurisdiction of all domestic matters, properly entered this consent judgment even though it contained a provision which was outside of the pleadings. Edmundson, supra. See also Whitesides v. Whitesides, 271 N.C. 560, 157 S.E. 2d 82 (1967).

Similarly, we are not persuaded by the argument that the trial court did not have the authority, even with the consent of the parties, to order plaintiff to pay all of defendant’s “necessary and reasonable medical expenses.” In White v. White, 289 N.C. 592, 223 S.E. 2d 377 (1976), our Supreme Court held that an order, entered upon the consent of the parties, compelling a father to assume the burden of a four year college education of each of his children, though it exceeded the requirements of the common law, was valid when entered upon the consent of the parties. The Court stated:

That the order is based on an agreement of the parties makes it no less an order of the court once it is entered. It is likewise no less an order of the court, once entered, notwithstanding that the portion of it here in question could not have been lawfully entered without defendant’s consent. His consent made this portion of the order, once entered, lawful (citation omitted).

Accordingly, pursuant to the original consent judgment, as modified by the 28 October 1981 Order, plaintiff could, and did, consent to assume liability for all defendant’s “necessary and reasonable medical expenses.”

The trial court erred in entering judgment ex meru motu declaring portions of previous consent judgments null and void and unenforceable ab initio and in striking them. The order appealed from is vacated and this cause is remanded for summary judgment for defendant.

Judges Arnold and Wells concur.