Baugh v. Baugh , 44 N.C. App. 50 ( 1979 )

260 S.E.2d 161 (1979) 44 N.C. App. 50

Eugene Bibb BAUGH, Jr.
v.
Juanelle Clements BAUGH.

No. 7918DC324.

Court of Appeals of North Carolina.

November 20, 1979.

Max D. Ballinger, Greensboro, for plaintiff-appellee.

Adams, Kleemeier, Hagan, Hannah & Fouts by Walter L. Hannah, Greensboro, for defendant-appellant.

HILL, Judge.

Defendant made twenty-one exceptions in this cause, condensing them into three questions on appeal. We believe the following issue encompasses the questions before the Court:

Are the deed and stipulation incorporated into the judgment granting absolute divorce and adopted by the court as its own determination of the rights and obligations of the parties?

Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964), discussed in detail the two kinds of consent judgment which provide for payment to the wife.

In one, the court merely approves or sanctions the payments which the husband has agreed to make for the wife's support and sets them out in a judgment against him. Such a judgment constitutes nothing more than a contract between the parties made with the approval of the court. Since the court itself does not in such case order the payments, the amount specified therein is not technically alimony. In the other, the court adopts the agreement of the parties as its own determination of their respective rights and obligations and orders the husband to pay the specified amounts as alimony. Bunn, at p. 69, 136 S.E.2d at p. 242.

Bunn indicates further that a contract-judgment of the first type is enforceable only as an ordinary contract. It may not be enforced by contempt proceedings. A judgment of the second type is an order of the court, may be modified by the court at any time, and is enforceable by contempt.

A careful examination of the record reflects that nowhere in either the original judgment entered on 26 June 1974, or the amended consent judgment entered on 9 July 1975, does there appear an order by the court compelling the husband to pay alimony. The amended consent judgment amends the stipulation to provide for payment of different monthly installments and states that the same shall be paid into the office of the clerk of court and be enforceable by appropriate contempt proceedings. However, the parties were already divorced at this time, and there could be no alimony per se at the time of entry of the amended judgment by consent.

Although an order granting alimony may be modified, when a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter a new order for alimony. See G.S. 50-16.9(a); Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). The original stipulation is not a judgment and never became one, subject to enforcement as a part of any judgment.

In like manner the separation agreement must stand alone. It was not incorporated into any judgment so as to become a part thereof.

Since alimony is not a part of any judgment, original or amended, there is nothing to enforce by contempt. Holden v. Holden, infra.

We must conclude that the separation agreement and stipulation never achieved more status than approval and sanction by the court.

A contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. 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); Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529 (1944); Britt v. Britt, 36 N.C.App. 705, 245 S.E.2d 381 (1978).

The decision of Judge Washington in this cause is

Affirmed.

VAUGHN and ERWIN, JJ., concur.