Levitch v. Levitch , 294 N.C. 437 ( 1978 )

241 S.E.2d 506 (1978)

Virginia F. LEVITCH
v.
David H. LEVITCH.

No. 9.

Supreme Court of North Carolina.

March 7, 1978.

Floyd D. Brock by Jerry W. Miller, Asheville, for plaintiff-appellant.

Riddle & Shackelford by Robert E. Riddle and George B. Hyler, Jr., Asheville, for defendant-appellee.

COPELAND, Justice.

The sole question for our consideration here is whether the judgment incorporating the provisions of the separation agreement is enforceable by contempt. For the reasons set out below, we have determined that it is; therefore, the decision of the Court of Appeals must be reversed.

In the analogous area of consent judgments, we have held that where the court merely approves the payments the supporting spouse has agreed to make and sets them out in the judgment, nothing more than a contract results; however, a judgment in which the court adopts the agreement of the parties as its own determination of their respective rights and obligations and directs payment of the specified amounts is an order of the court. Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964). Judgments of the former type are enforceable only as ordinary contracts, while judgments in the latter category may be enforced by contempt proceedings. Id. We have further stated that, "When the parties' agreement with reference to the wife's support is incorporated in the judgment, their contract is superseded by the court's decree. The obligations imposed are those of the judgment, which is enforceable as such." Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967).

In the instant case, the court expressly stated that it "ORDERED, ADJUDGED and DECREED that the Separation Agreement heretofore entered into by the parties. . . be . . . incorporated by reference in this Judgment." Defendant contends that since the court failed to expressly state that the alimony provided for in the agreement was ordered to be paid, this was a mere approval of the agreement, rather than an adoption of it into the judgment. The incorporation language here, however, appears sufficiently compelling to indicate an intent on the part of the court to order payment of the alimony. Indeed, in the usual case in which we have found approval rather than adoption, the court has stated merely that the agreement was approved, reviewed the subject matter of the agreement in narrative form without further order, or expressly excluded the agreement from any prejudice under the terms of the judgment. See, e. g., Davis v. Davis, 213 N.C. 537, 196 S.E. 819 (1938); Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956); Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118 (1946).

Defendant further argues that because the separation agreement provided that it was to be incorporated in any decree of absolute divorce subsequently obtained by the parties without merging therein, the judgment here must be interpreted to be a mere approval rather than an adoption of the agreement. As a general rule, the determinative factor in construing judgments is the intent of the court. 46 Am.Jur.2d, Judgments, § 73. Although the intent of the parties is controlling in the interpretation of consent judgments, Yount v. Lowe, 288 N.C. 90, 215 S.E.2d 563 (1975), the decree in the instant case does not appear to have been obtained by consent.

Defendant relies upon Williford v. Williford, 10 N.C.App. 451, 179 S.E.2d 114, cert. denied, 278 N.C. 301, 180 S.E.2d 177 (1971), for the proposition that mere incorporation by reference is insufficient to indicate an adoption of the agreement. We see from a connected case at 10 N.C.App. 529, 179 S.E.2d 113 cert. denied, 278 N.C. 301, 180 S.E.2d 178 (1971), however, that the incorporation by reference in the judgment there was specifically stated by the district judge to have been done pursuant to provisions in a paragraph of the separation agreement. In the case sub judice, the court found that the agreement ". . . shall survive this action and should be incorporated by reference herein . . ." and specifically ordered that it be incorporated by reference with no mention of any reason for the incorporation other than its determination that the agreement would survive the judgment. In the face of such unequivocal language, we cannot hold that a mere proviso in the agreement should overcome the express intent of the court to adopt the alimony provisions into its order.

It is our conclusion that the separation agreement, including the alimony provisions, was adopted by the court and compliance with its terms ordered in the divorce decree. The lower courts erred in ruling to the contrary; therefore, the cause is reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.