Rowe v. Rowe

287 S.E.2d 840, 305 N.C. 177, 1982 N.C. LEXIS 1257
CourtSupreme Court of North Carolina
DecidedMarch 3, 1982
Docket96A81
StatusPublished
Cited by60 cases

This text of 287 S.E.2d 840 (Rowe v. Rowe) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rowe v. Rowe, 287 S.E.2d 840, 305 N.C. 177, 1982 N.C. LEXIS 1257 (N.C. 1982).

Opinions

[183]*183BRITT, Justice.

We agree in part, but disagree in part, with the decision of the Court of Appeals. While we agree that a new hearing must be conducted by the trial court, we hold that the scope of the hearing must be extended beyond that ordered by the Court of Appeals.

I.

The primary question presented in this appeal is whether the consent order of 6 December 1976 is modifiable.

In Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240 (1965), this court, in an opinion by Justice (later Chief Justice) Sharp, held that there are two types of consent judgments which provide for payment of support to a dependent spouse. One is simply a contract that is approved by the court. The payments specified therein are not technically alimony. This type of consent judgment is enforceable only as an ordinary contract and the parties are not subject to the contempt power of the court for its breach. Consent of both parties is required for modification. Id.

In the second type of consent judgment, the court adopts the agreement of the parties as its own and orders the supporting spouse to pay the amounts specified as alimony. This second type of order is enforceable by the court’s contempt powers. Id. Ordinarily it is also modifiable. Bunn, supra.

In the case at hand, were it not for the proviso in the 6 December 1976 consent order that G.S. 50-16.9 would not apply, Bunn no doubt would control this case. Usually, public policy would require that the consent order be modifiable in spite of this proviso.

Our legislature in 1967 codified the principles enunciated in Bunn by enacting G.S. 50-16.9. This statute provides in pertinent part:

(a) An order of a court of this State for alimony or alimony pendente lite, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested ....

[184]*184By enacting this statute, the legislature has clearly expressed that it is the public policy of this state that consent orders to pay alimony are modifiable. In the usual case a proviso in an order purporting to waive applicability of G.S. 50-16.9 would be contrary to this policy and, therefore, without force and effect.

Nevertheless, this court in Bunn and in White v. White, 296 N.C. 661, 252 S.E. 2d 698 (1979) recognized an exception to the rule just stated. We quote from the opinion by Justice Exum in White:

Even though denominated as such, periodic support payments to a dependent spouse may not be alimony within the meaning of the statute and thus modifiable if they and other provisions for a property division between the parties constitute reciprocal consideration for each other.

296 N.C. at 666.

For purposes of determining whether a consent judgment may be modified under the statute, there is a presumption that the provisions for property division and support payments are separable. Id. The burden of proof rests on the party opposing modification to show that the provisions are not separable. Id.

At the hearing before Judge McHugh, defendant attempted on two occasions to introduce evidence of the negotiations between the parties in an effort to show that the consent order and property settlement were reciprocal agreements. First, on cross-examination of plaintiff, and referring to the proviso on non-modification, defendant’s attorney asked: “How do you recall that provision got into that order in the negotiating process?” Plaintiff objected to the question and his objection was sustained by the trial judge. The Court pf Appeals found no error in this ruling on the ground that admitting evidence relating to the negotiations would violate the parol evidence rule that any or all parts of a transaction prior to or contemporaneous with a writing intended to record them are superseded and made legally ineffective by the writing. Tomlinson v. Brewer, 18 N.C. App. 696, 197 S.E. 2d 901 (1973); 2 Stansbury’s N.C. Evidence § 251 (Brandis Rev. 1973).

We disagree with the trial court and the Court of Appeals that the testimony defendant sought to elicit on cross-examination would violate the parol evidence rule.

[185]*185Generally, evidence of prior and contemporaneous negotiations and agreements are not admissible to vary, add to, or contradict a written instrument. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E. 2d 517 (1960); 2 Stansbury’s § 251. However, when the court finds a contract to be ambiguous, evidence of prior negotiations is admissible to show the intent of the parties. Root v. Ins. Co., 272 N.C. 580, 158 S.E. 2d 829 (1968). Further, the rule is intended to apply only to final, totally integrated writings; that is, those writings relating to a transaction which are intended to supersede all other agreements regarding that transaction. If the writing supersedes only a part of the transaction, it is a partial integration and other portions of the transaction may be shown by parol evidence. 2 Stansbury’s § 252.

Turning to the case at bar, we reiterate that ordinarily the proviso in the 1976 consent order regarding non-modification would be without force or effect. In accord with G.S. 50-16.9, the consent order may be modified unless defendant can show that it was an integral part of the property settlement. White v. White, supra. The intention of the parties regarding the reciprocity of the agreements is not evident from a reading of the consent order. Therefore, evidence of the negotiations and contemporaneous property settlement agreements of the parties are admissible to clarify the uncertainty created when the non-modification provision of the order appears to be void as a matter of law. We also note that defendant does not seek to vary, add to or contradict the terms of the consent order. Indeed, she is merely trying to enforce the entire agreement as written.

Further, it is clear that the consent order represents only part of the total settlement between the parties. As such, it is only a partial integration of the total agreement and parol evidence is admissible to show the balance of the transaction. 2 Stansbury’s § 252.

The second effort made by defendant to prove that the consent order was an integral part of the property settlement was an attempt to introduce a letter written 18 November 19761 by plaintiff’s then attorney to defendant’s then attorney offering a settlement.

[186]*186The letter begins “I have talked with Henry Rowe again in an effort to settle all matters existing between Henry and Mary. At this time, by way of offer of compromise and settlement on Henry’s behalf, I wish to advise the following . . . The letter lists eleven items including “3. Henry will pay to Mary alimony at the rate of $2,500 per month until her death or remarriage . . . Judge McHugh ruled that the letter was inadmissible because it was an offer of compromise or settlement. The Court of Appeals agreed with Judge McHugh’s ruling. We disagree.

North Carolina follows the rule that an offer of compromise, as such, is never admissible as an admission of the party making it. See Mahaffey v. Sodero, 38 N.C. App. 349, 247 S.E. 2d 772 (1978); 2 Stansbury’s § 180.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Canteen v. Charlotte Metro Credit Union
Supreme Court of North Carolina, 2024
Shirey v. Shirey
Court of Appeals of North Carolina, 2019
Hill v. Hill
821 S.E.2d 210 (Court of Appeals of North Carolina, 2018)
Hoover v. Hoover
788 S.E.2d 615 (Court of Appeals of North Carolina, 2016)
Gandhi v. Gandhi
779 S.E.2d 185 (Court of Appeals of North Carolina, 2015)
National Union Fire Insurance v. Njuguna
15 F. Supp. 3d 637 (E.D. North Carolina, 2014)
Parsons v. Parsons
752 S.E.2d 530 (Court of Appeals of North Carolina, 2013)
Kelly v. Kelly
747 S.E.2d 268 (Court of Appeals of North Carolina, 2013)
Martin v. Martin
698 S.E.2d 491 (Court of Appeals of North Carolina, 2010)
Smith Architectural Metals, LLC v. American Railing Systems, Inc.
698 S.E.2d 752 (Court of Appeals of North Carolina, 2010)
Dodson v. Dodson
660 S.E.2d 93 (Court of Appeals of North Carolina, 2008)
Frey v. Best
659 S.E.2d 60 (Court of Appeals of North Carolina, 2008)
Pierce v. Pierce
655 S.E.2d 863 (Court of Appeals of North Carolina, 2008)
Harris v. Harris
656 S.E.2d 316 (Court of Appeals of North Carolina, 2008)
Swain v. Swain
635 S.E.2d 504 (Court of Appeals of North Carolina, 2006)
Madey v. Duke University
336 F. Supp. 2d 583 (M.D. North Carolina, 2004)
DELOACH v. Philip Morris Companies, Inc.
321 F. Supp. 2d 707 (M.D. North Carolina, 2004)
Honeycutt v. Honeycutt
568 S.E.2d 260 (Court of Appeals of North Carolina, 2002)
Sloan v. Sloan
566 S.E.2d 97 (Court of Appeals of North Carolina, 2002)
Chappell v. Roth
548 S.E.2d 499 (Supreme Court of North Carolina, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
287 S.E.2d 840, 305 N.C. 177, 1982 N.C. LEXIS 1257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowe-v-rowe-nc-1982.