Crane v. Green

441 S.E.2d 144 (1994) 114 N.C. App. 105

Baxter C. CRANE, Jr. and wife, Ceanne J. Crane, Plaintiffs,
v.
Bobby Macbryan GREEN and Daniel Joseph Maddalena, Defendants.

No. 9324SC548.

Court of Appeals of North Carolina.

March 15, 1994.

No brief for plaintiffs-appellees.

Allman Spry Humphreys Leggett & Howington, P.A. by David C. Smith, Winston-Salem, for defendants-appellants.

WELLS, Judge.

Defendants contend that the trial court erred by holding them in contempt of court because the order which the trial court found defendants to have violated was not an order of the court enforceable through the contempt powers of the court. We agree.

Failure to comply with an order of the court is enforceable through the contempt powers of our courts. N.C.Gen.Stat. § 5A-21 (1986 & Supp.1993). A person found in civil contempt may appeal in the manner provided by G.S. § 7A-27. N.C.Gen.Stat. § 5A-24.

The general rule is that a consent judgment is the contract of the parties entered upon the record with the sanction of the court. Armstrong v. Aetna Insurance Co., 249 N.C. 352, 106 S.E.2d 515 (1959). The sole exception to this rule is in the area of domestic relations law where all alimony and support agreements approved by the court are treated as court-ordered judgments. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983). In the ordinary case, when a court merely approves the agreement of the parties and sets it out in the judgment, a judicial determination is obviated, Armstrong, supra, and the judgment is nothing more than a contract which is enforceable only by means of an action for breach of contract. Walters, supra.

On its face the judgment on which the trial court based its contempt order does not reflect a determination by the trial court of either issues of fact or conclusions of law presented by the case before it. The judgment contains no findings of fact and no conclusions of law. The introduction to the judgment clearly states the basis for the entry:

THIS MATTER coming on before the undersigned Superior Court Judge at the October 8, 1990 Civil Session of the Avery County Superior Court, and it appearing to the Court that the parties, acting through their attorneys and pro se respectively, have agreed to resolve all matters pertaining to the above-captioned action as set forth below.

THEREFORE, IT IS HEREBY, ORDERED, ADJUDGED AND DECREED:

The introductory paragraph is followed by eight double spaced typewritten pages reflecting the stipulations and agreements of the parties. Following the last ordering paragraph, the judgment concludes with the signatures of defendants Green and Maddalena acting pro se, plaintiffs, the attorney for plaintiffs, and Judge DeRamus.

Viewed from its four corners, it is clear that the order of 8 October 1990 is merely a recital of the parties' agreement and not an adjudication of rights. Armstrong, supra; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). Consequently, the consent judgment is not an order enforceable through the contempt powers of the court.

For the reasons stated, the order entered by the trial court on 10 March 1993 is

Reversed.

ORR and WYNN, JJ., concur.