No. 454.

136 S.E.2d 240 (1964)

262 N.C. 67

Christine Carpenter BUNN v. Harold BUNN.

Supreme Court of North Carolina.

May 20, 1964.

Attorney(s) appearing for the Case

Alfonso Lloyd and R. P. Upchurch, Raleigh, for plaintiff.

No counsel contra.

SHARP, Justice.

"Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband by order of court in an appropriate proceeding, and is either temporary or permanent." Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118. Consent judgments for the payment of subsistence to the wife are of two kinds. In one, the court merely approves or sanctions the payments which the husband has agreed to make for the wife's support and sets them out in a judgment against him. Such a judgment constitutes nothing more than a contract between the parties made with the approval of the court. Since the court itself does not in such case order the payments, the amount specified therein is not technically alimony. In the other, the court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders the husband to pay the specified amounts as alimony.

A contract-judgment of the first type is enforceable only as an ordinary contract. It may not be enforced by contempt proceedings and, insofar as it fixes the amount of support for the wife, it cannot be changed or set aside except with the consent of both parties in the absence of a finding that the agreement was unfair to the wife or that her consent was obtained by fraud or mutual mistake. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487; Howland v. Stitzer, 236 N.C. 230, 72 S.E.2d 583; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Stanley v. Stanley, supra; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. Of course, neither agreements nor adjudications for the custody or support of a minor child are ever final. Parties may never withdraw children from the protective supervision of the court. Fuchs v. Fuchs, supra; Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721; Holden v. Holden, supra.

A judgment of the second type, being an order of the court, may be modified by the court at any time changed conditions make a modification right and proper. The fact that the parties have agreed and consented to the amount of the alimony decreed by the court does not take away its power to modify the award or to enforce it by attachment for contempt should the husband wilfully fail to pay it. Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882; Smith v. Smith, 247 N.C. 223, 100 S.E.2d 370; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Davis v. Davis, supra; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278. Alimony is subject to modification and to enforcement by contempt proceeding if the situation so requires.

When called upon to alter the terms of a consent judgment, or to enforce its provisions by contempt proceedings, the question for the court in each case is whether the provision for the wife contained therein rests only upon contract or is an adjudication of the court. If it rests on both, it is no less a decree of the court. As pointed out in a note in 35 N.C.L.Rev. 405, "the subleties in the form" of a consent judgment for support payments to the wife "play a major role in determining the subsequent rights of the parties" and, if the judgment is to be of "practical value to the wife other than as a judicial affirmation of the contract existing between the parties, * *. it is advisable that the attorney carefully word the form of the judgment so as to preserve in the court further rights in the cause." See also 40 N.C.L.Rev. 530.

Needless to say, a judgment which purports to be a complete settlement of all property and marital rights between the parties and which does not award alimony within the accepted definition of that term is not subject to modification even though it adjudges that the wife recover a specific money judgment. This is a consent judgment in its technical sense. Armstrong v. Aetna Insurance Co., 249 N.C. 352, 106 S.E.2d 515; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209. However, an agreement for the division of property rights and an order for the payment of alimony may be included as separable provisions in a consent judgment. In such event the division of property would be beyond the power of the court to change, but the order for future installments of alimony would be subject to modification in a proper case. Briggs v. Briggs, 178 Or. 193, 165 P.2d 772, 166 A.L.R. 666. However, if the support provision and the division of property constitute a reciprocal consideration so that the entire agreement would be destroyed by a modification of the support provision, they are not separable and may not be changed without the consent of both parties. 2A Nelson on Divorce and Alimony (2d ed. rev.) § 17.03; Annot., 166 A.L.R. 693-701.

Since the decision of this Court in Stancil v. Stancil, supra, it has been clear that, absent special circumstances, any judgment which awards alimony, notwithstanding it was entered by the consent of the parties, is enforceable by contempt proceedings should the husband wilfully fail to comply with its terms. If the judgment can be enforced by contempt, it may be modified and vice versa. This is only just. If a man in prosperous days consents that a judgment be entered against him for generous alimony and thereafter is unable to pay it because of financial reverses, the order should be altered to conform to his ability to pay.

The consent judgment which Judge Hooks entered on November 16, 1961 was not a mere contract-judgment; it was an adjudication, an order to pay alimony in an amount which the parties then agreed was proper. While not an issue here, it is clear that the agreement and decree that defendant convey to plaintiff, as a home for herself and the two minor children, the property which they owned as tenants by the entirety was separable from the support provisions. Plaintiff recognized the status of Judge Hooks' judgment as an adjudication of alimony when, in August 1962, she asked the court to enforce it by attaching the defendant for contempt for his failure to make the required payments. The disposition of this motion does not appear. Presumably the defendant paid the arrearage for, upon his motion on September 21, 1962, Judge Heman R. Clark reduced the payments which he had agreed to make and which Judge Hooks had decreed. Judge Clark had the authority to reduce these payments and plaintiff did not appeal from his order. Judge Bone therefore properly denied plaintiff's motion that Judge Clark's order modifying that of Judge Hooks be declared null and void.

The plaintiff also attempts to assign as error the failure of Judge Bone to make an order allowing fees to her attorneys for their services in contesting defendant's motion for a further reduction in his payments and in prosecuting her motion to reinstate Judge Hooks' judgment. It does not appear from the record that Judge Bone passed upon plaintiff's motion for fees or that the matter was ever brought to his attention. The subject of attorneys' fees and the exception to the judge's failure to allow them first appear in an assignment of error. An exception which appears nowhere in the record except under a purported assignment of error is worthless and will not be considered on appeal. Holden v. Holden, supra.

The judgment of the Superior Court is



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