Brandt v. Brandt

374 S.E.2d 663, 92 N.C. App. 438, 1988 N.C. App. LEXIS 1072, 1988 WL 139052
CourtCourt of Appeals of North Carolina
DecidedDecember 30, 1988
DocketNo. 8810DC173
StatusPublished
Cited by6 cases

This text of 374 S.E.2d 663 (Brandt v. Brandt) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brandt v. Brandt, 374 S.E.2d 663, 92 N.C. App. 438, 1988 N.C. App. LEXIS 1072, 1988 WL 139052 (N.C. Ct. App. 1988).

Opinions

ORR, Judge.

Plaintiff-wife and defendant-husband were married on 3 February 1968. They separated on 25 February 1979. In September of 1979, they entered into a separation agreement, the relevant terms of which will be set forth in the text of this opinion. Thereafter, on 26 March 1980, the parties were granted an absolute divorce.

One child, Kimberly Denise Brandt, was born to the couple on 6 June 1977. Custody of the minor daughter was awarded to plaintiff with reasonable visitation privileges being granted to defendant in accordance with paragraph four of the separation agreement.

[440]*440Despite the initial custody agreement between the Brandts, Kimberly now lives with defendant, and has lived with him since 1981. Kimberly is enrolled in a private school near her father’s home, but she travels to Louisiana to spend her Christmas and summer vacations with her mother each year.

Plaintiffs action, which was instituted on 31 August 1984, claimed that her needs and her daughter’s needs had become much greater and that she was in need of support because defendant had discontinued his payments without her consent. Additionally, plaintiff requested arrearages and sought to enforce defendant’s compliance with the terms of the separation agreement.

Defendant’s answer counterclaimed for legal custody of Kimberly, and it contained a motion to strike all support provisions under the agreement. Defendant further asked the court for reimbursement of all child support payments made to plaintiff by which she was unjustly enriched.

Judge Cashwell heard each party’s summary judgment motion in February of 1986. At that time, he concluded that “there [was] no dispute of material fact with regard to the Defendant’s liability to the Plaintiff for the payment of alimony . . . under the Agreement. . . .” Plaintiffs motion was granted; the court indicated that the actual amount of arrearages would be determined at a later hearing.

Defendant filed several motions seeking relief from judgment and amendments to the trial court’s finding of facts. After these motions were denied, they were again reviewed by Judge More-lock. Ultimately, all of defendant’s motions were denied. However, the court agreed to determine whether defendant was entitled to any retroactive or future support from plaintiff, if and when the court awarded defendant legal custody of Kimberly. The court thereafter granted plaintiffs two motions in limine precluding defendant from introducing certain evidence at the later hearing on custody and arrearages.

The hearing resulted in judgment being entered in favor of plaintiff. Defendant was ordered to pay $57,625.00 in alimony ar-rearages. The court further ordered joint custody of Kimberly, with defendant having primary and physical custody and plaintiff [441]*441having secondary custody. Defendant’s requests for retroactive and future child support from plaintiff were denied.

I.

The first issue is whether the lower court erred in granting plaintiffs summary judgment motion.

Summary judgment is appropriate only when all of the materials filed in connection with the action make clear that there are no factual questions to be resolved by the fact finder, and the movant is entitled to a favorable judgment as a matter of law. G.S. 1A-1, Rule 56 (1988).

A paragraph in the Brandts’ separation agreement, sub-headed as “Alimony,” states:

5. ALIMONY: for the support of the Wife and child, Husband agrees to pay Wife Two THOUSAND ONE HUNDRED FIFTY AND No/100 ($2,150.00) Dollars per month for the period of October, 1979, through September, 1984; and ONE THOUSAND Fifty and No/100 ($1,050.00) Dollars per month for the period of October, 1984, through September 1999. In the event of the death of the Wife, the above payments will stop. In the event of the remarriage of the Wife, the above monthly payments will be reduced to THREE HUNDRED SEVENTY-Five and No/100 ($375.00) Dollars per month but only after September, 1984. . . .

Defendant has cited two cases which support the proposition that the literal wording of separation agreements does not control the interpretation of the contract. Rustad v. Rustad, 68 N.C. App. 58, 314 S.E. 2d 275, disc. rev. denied, 311 N.C. 763, 321 S.E. 2d 145 (1984). Defendant also cited Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E. 2d 288, cert. denied, 287 N.C. 664, 216 S.E. 2d 911 (1975), to support the proposition that when interpreting separation agreements, courts must ascertain the intent of the parties.

While the defendant has accurately stated these rules, we find that they have no application in the dispute before us. The facts of this case do not require us to determine what the parties’ intentions were in order to evaluate the appropriateness of the court’s granting plaintiffs summary judgment motion. The facts indicate that the parties executed this agreement free from any [442]*442duress or other illegalities which would invalidate their contract. Defendant agreed to pay plaintiff support and he specifically listed the different events which would cause those payments to be reduced or terminated. There was no proviso relating to a reduction in payments if defendant was to be awarded legal custody of Kimberly. The parties negotiated the terms of their agreement at arm’s length. We see nothing which would have kept defendant from bargaining for the terms which he desired. We will not rewrite this agreement to allow defendant to add a new condition under which support payments will be reduced. Therefore, we find that there was no genuine issue of material fact to be decided; defendant’s obligation to pay support to plaintiff was clear. We overrule this assignment of error.

II.

The next issue before us is whether the court erred in ordering defendant to specifically perform the spousal support agreement.

Defendant contends that there was not enough credible evidence presented to establish that he was capable of complying with the support provisions of the agreement. He claims that currently his only income is derived from his position as a technical consultant. He admits to doing consulting work for a company owned by his new wife, but he denies receiving any compensation for his services. Defendant claims that since his annual income is only $30,000.00 he cannot make the required payments.

The evidence at trial showed that defendant donates at least 15% of his time to his wife’s instrument services company, Eastern Instruments, and he’s given office space and other benefits instead of monetary remuneration. Defendant’s wife owns 100% of Eastern Instruments’ stock; she earns an annual salary of $30,000.00. In addition, defendant owns at least two vehicles, and he receives health insurance and benefits from Eastern Instruments.

The court concluded, based upon this evidence, that defendant has assets which are titled in the names of Eastern Instruments and his wife’s name in order to avoid attachment by defendant’s creditors. Additionally, the court found that defendant was not receiving a salary from Eastern Instruments because [443]*443he was deliberately trying to depress his income. The testimony which supports the court’s decision shows that defendant’s wife has very little technical knowledge about instrument services. Rather, her background is in the administrative sphere of her company.

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.E.2d 663, 92 N.C. App. 438, 1988 N.C. App. LEXIS 1072, 1988 WL 139052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandt-v-brandt-ncctapp-1988.