Morrow v. Morrow , 103 N.C. App. 787 ( 1991 )

EAGLES, Judge.

The sole issue presented in this case is whether the trial court erred in concluding that it did not have jurisdiction to hear defendant’s motion in the cause for specific performance of provisions of a separation agreement that were not a part of any court order. We hold that the court did not err and affirm the order of the trial court.

Defendant is correct when she contends that in some cases a court may order the specific performance of a separation agreement that has not been made part of a divorce decree. Defendant cites a number of cases, including Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735 (1979), which stand for that proposition.

While we agree that specific performance may be an available remedy, we do not agree with defendant’s argument that here “the court ruled that since it was a separation agreement, that there was a remedy at law and therefore the court had no jurisdiction to order specific performance.”

The court found as follows:

The defendant by her Motion seeks to enforce a provision of the Separation Agreement, which has not been incorporated into a Court Order, but rather has remained a contract between the parties. As such it is enforceable only as an ordinary contract and this Court is without jurisdiction to hear the matter.

(Emphasis added.) When a separation agreement is not incorporated into a court order and remains a contract between the parties, it is enforceable only as an ordinary contract. DeGree v. DeGree, 72 N.C. App. 668, 325 S.E.2d 36, disc. review denied, 313 N.C. 598, 330 S.E.2d 607 (1985). An exception to this rule is that “parents cannot in a separation agreement, or any other contract, enter into an agreement dealing with the custody and support of their children which will deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of minors.” 2 R. Lee, N.C. Family Law § 189 (1980). While the parties’ son was a minor, the court had authority to enforce or modify the provisions of the separation agreement, and the parties could properly bring a motion in the cause.

Here, however, defendant alleges that plaintiff is contractually obligated to support the parties’ child who is no longer a minor. G.S. 1A-1, Rule 2 provides: “There shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action.” G.S. 1A-1, Rule 3 sets out the way to commence a civil action. Rule 3 makes no provision for a motion in the cause to enforce a contract. Accordingly, on this record we hold that the trial court correctly concluded that it was without jurisdiction to hear defendant’s motion in the cause.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

Judge LEWIS concurs. Judge GREENE concurs in the result in a separate concurring opinion.