Jones v. Jones

590 S.E.2d 308, 162 N.C. App. 134, 2004 N.C. App. LEXIS 54
CourtCourt of Appeals of North Carolina
DecidedJanuary 6, 2004
DocketNo. COA03-285.
StatusPublished
Cited by3 cases

This text of 590 S.E.2d 308 (Jones v. Jones) 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
Jones v. Jones, 590 S.E.2d 308, 162 N.C. App. 134, 2004 N.C. App. LEXIS 54 (N.C. Ct. App. 2004).

Opinion

HUDSON, Judge.

Plaintiff Lessonia Jones ("Mrs. Jones") filed a complaint against defendant Robert T. Jones ("Mr. Jones"), her ex-husband, for specific performance of his obligations under a previously executed separation agreement and property settlement. Defendant failed *309to file an answer and the plaintiff obtained an Entry of Default on 27 February 2002. The court thereafter granted defendant relief from that Entry of Default, and defendant filed an answer 12 March 2002. Following a trial, the court denied relief to plaintiff's request. Plaintiff appeals. For the reasons discussed below, we reverse.

Mr. and Mrs. Jones married on 17 June 1972 and had one emancipated child at the time of the trial. Mr. and Mrs. Jones separated on 7 June 1999, and that July executed a separation agreement, which divided the parties' debts and property and obligated Mr. Jones to pay $600 per month alimony to Mrs. Jones.

Several months later, Mr. Jones telephoned Mrs. Jones, telling her that he was mailing her a paper that she would need to sign "for [their] divorce." Mrs. Jones received a complaint for divorce prepared by Mr. Jones' counsel in Tennessee. Attached to the complaint was a "Marital Dissolution Agreement" ("dissolution agreement"). The dissolution agreement purported to "equitable [sic] settle the property rights between" the Joneses. The dissolution agreement did not specifically mention alimony, but did include a clause stating that the "parties hereto agree that the foregoing constitutes their entire agreement with respect to the matters embraced herein...." The parties each signed the dissolution agreement 19 December 1999, and were granted a divorce in Tennessee on 23 March 2000.

At trial, Mr. Jones testified, over the objection of plaintiff's counsel, about conversations he allegedly had with Mrs. Jones prior to the execution of the Tennessee dissolution agreement. Mr. Jones testified that he had agreed to pay her regular monthly alimony, in amounts that would gradually decrease and cease altogether after December 2000, and that Mrs. Jones knew that the dissolution agreement was a waiver of her alimony rights. All of the conversations to which Mr. Jones testified occurred before the execution of the dissolution agreement and none of the alleged oral agreements were reduced to writing.

Mrs. Jones testified that the dissolution agreement did not mention alimony and that she would not have signed any waiver of her right to alimony. She denied that she ever agreed with Mr. Jones to waive her right to alimony and she testified that any payments Mr. Jones planned to make to her were unilateral and not part of any agreement between them. Mrs. Jones appeals the order of the trial court refusing to enforce the alimony provisions in the original separation agreement.

Mrs. Jones assigns error to the court's ruling that the dissolution agreement constituted a waiver of her right to alimony under the earlier separation agreement. For the reasons discussed below, we agree and reverse.

In a bench trial, the trial court must "find the facts specifically and state separately its conclusions of law." N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (1999). The court's conclusions of law must be supported by the court's factual findings. Lagies v. Myers, 142 N.C.App. 239, 247, 542 S.E.2d 336, 341, disc. review denied, 353 N.C. 526, 549 S.E.2d 218 (2001). However, "[i]f the court's factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary.... In contrast, the trial court's conclusions of law are reviewable de novo." Id. at 246, 542 S.E.2d at 341 (internal citations and quotation marks omitted).

Here, the court's order purports to contain six findings of fact; however, the sixth "finding" is actually a mixed finding of fact and conclusion of law. Only the fifth and sixth findings pertain to the issue at hand:

5. That the Parties entered into a `Separation Agreement and Property Settlement' dated July 27, 1999, as attached to the Plaintiff's Complaint, which included the provision for the payment of alimony by the Defendant to the Plaintiff.
6. That subsequent to the execution of the aforesaid Agreement, the Parties entered into and executed a `Marital Dissolution Agreement' pursuant to Tennessee Code Annotated Section 34-4-103 on December 19, 1999, which was incorporated in the Defendant's `Complaint for Divorce', in the divorce action in the Chancery Court

*310

of Madison County, Tennessee entitled "Robert T. Jones, Plaintiff v. Leesonia [sic] H. Jones, Defendant, R.D. No. 56876' and approved by the Court. [sic] that although the aforesaid Tennessee Marital Dissolution Agreement does not specifically mention alimony, its [sic] clear that it is a total and complete resolution of all the claims between the Parties including alimony.

The last sentence of finding six is a conclusion regarding the legal effect of the dissolution agreement, which language appears verbatim as the court's conclusion two. The facts found are not sufficient to support this conclusion, and as a matter of law, can only support a conclusion that the dissolution agreement neither modified the previous separation agreement nor waived Mrs. Jones' right to alimony.

"Married couples are authorized to execute separation agreements, N.C.G.S. § 52-10.1 (1991), and alimony can be waived by `an express provision of a valid separation agreement.'" Napier v. Napier, 135 N.C.App. 364, 367, 520 S.E.2d 312, 314 (1999), disc. review denied, 351 N.C. 358, 543 S.E.2d 132 (2000), (quoting N.C.G.S. § 50-16.6 (1995)). Because such waivers must be express, general releases are insufficient to waive a spouse's right to alimony. Id. In Napier,

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Cite This Page — Counsel Stack

Bluebook (online)
590 S.E.2d 308, 162 N.C. App. 134, 2004 N.C. App. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-ncctapp-2004.