Whitt v. Whitt

230 S.E.2d 793, 32 N.C. App. 125, 1977 N.C. App. LEXIS 1866

• Court: Court of Appeals of North Carolina
• Decided: January 5, 1977
• Docket: 7618DC501
• Status: Published

Opinion

MORRIS, Judge.

The sole issue for consideration in this case is whether the trial court erred when it concluded as a matter of law that the provision in the deed of separation, which required defendant to convey the property to plaintiff, was not executory and, therefore, was not voided by the subsequent reconciliation of the parties.

The general rule in North Carolina concerning the effect of a reconciliation upon the terms of a separation agreement was set forth in Jones v. Lewis, 243 N.C. 259, 261, 90 S.E. 2d 547, 549 (1955):

“It is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter became reconciled and renew their marital relations, the agreement is terminated for every purpose insofar as it remains executory. (Citations omitted.) Even so, a reconciliation and resumption of marital relations by the parties to a separation agreement would not revoke or invalidate a duly executed deed of conveyance in a property settlement between the parties . ... ”

See also Newton v. Williams, 25 N.C. App. 527, 214 S.E. 2d 285 (1975). Defendant contends that the provision in the deed of separation was executory in nature, or at least unexecuted, and that upon the resumption of the marital obligations of the parties, the provision was voided. We disagree.

Defendant argues that since she did not sign all the deeds as she promised to do in the deed of separation, the provision requiring her to do so is “executory.” In other words, she maintains that the provision is “executory” merely because it is as yet “unexecuted.” This, however, is a non sequitur. An “execu-tory contract” is one in which a party binds himself to do or not to do a particular thing in the future. When all future performances have occurred and there is no outstanding promise calling for fulfillment by either party, the contract is no longer “executory,” but is “executed.” See: In re Capital Service, 136 F. Supp. 430 (S.D. Cal. 1955); Mather v. Mather, 25 Cal. 2d 582, 154 P. 2d 684 (1944); 17 C.J.S., Contracts, § 7, p. 576. Thus when our cases speak of the “executory provisions” of a separation agreement, they are referring to those provisions which require a spouse to do some future act in accordance with the terms of the agreement, such as to pay alimony, child support, etc. One spouse may not transform a provision in a separation agreement which is otherwise fully executed into an executory provision merely by fraudulently avoiding compliance with the- executed covenant.

Here, the deed of separation called for plaintiff to convey certain property to defendant and for defendant to convey to plaintiff all her interest in their property held by the entirety. While it could be argued that defendant’s signing and delivery of the deeds was implicitly conditioned upon reciprocal conveyances by plaintiff, this condition was satisfied when plaintiff effectively transferred the property according to the terms of the agreement. There were no other additional conditions or covenants to be performed in the future by either spouse. Thus, the trial judge could properly conclude, as he did, that the provision in question was “ . . . not executory in nature and required the defendant to comply with its terms concurrent with the execution of the entire agreement.” Consequently it was also entirely proper for the judge to conclude that defendant’s failure to sign the deeds constituted a breach of an executed contract, and that defendant’s duty to convey was not voided by the parties’ subsequent resumption of the marital relationship.

No error.

Judges Clark and Arnold concur.