Wells v. Wells , 92 N.C. App. 226 ( 1988 )

HEDRICK, Chief Judge.

The record discloses that the Deed of Separation described in the findings of fact was prepared by defendant’s attorney, and that both plaintiff and defendant acknowledged the Deed of Separation before defendant’s attorney who was a notary public. The record further establishes that plaintiff was not represented by counsel at that time, and plaintiff paid defendant’s attorney a fee of $600.00 pursuant to the agreement. Plaintiff now argues the Deed of Separation is and always has been “null and void” because it was not properly acknowledged in accordance with the provisions of G.S. 52-10.1. Plaintiff contends the notary public taking the acknowledgment, because he was paid a fee by plaintiff and because of his relationship to defendant as her attorney, had an interest in the matter and was a party to the contract in violation of G.S. 52-10.1. Plaintiff therefore argues the court had no authority to incorporate the Deed of Separation into the Judgment of Divorce and the court had no authority to find plaintiff in contempt for not making the payments prescribed in the separation agreement and the order. We disagree with plaintiff and affirm the order dated 22 October 1987, finding plaintiff in contempt and ordering him to purge himself by making the total payment of $2,700.00.

In Walters v. Walters, 307 N.C. 381, 386, 298 S.E. 2d 338 (1983), our Supreme Court stated:

[W]e now establish a rule that whenever the parties bring their separation agreements before the court for the court’s approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.

Our Supreme Court has also stated that “[t]here is a presumption in favor of the regularity and validity of judgments in the lower court, and the burden is upon [an] appellant to show prejudicial error.” London v. London, 271 N.C. 568, 570, 157 S.E. 2d 90, 92 (1967).

The trial judge’s authority to incorporate a deed of separation into a judgment does not depend on the validity of the deed of separation. When the paper writing purporting to be the Deed of Separation was incorporated into the judgment, it merely set out the terms of the judgment. It is not the Deed of Separation that is being enforced in this proceeding; it is the judgment of the court which requires plaintiff to pay defendant $550.00 per month. Plaintiff has launched a collateral attack on the Judgment of Divorce dated 17 March 1986. If the judgment in question was void it could be attacked collaterally, but if it was merely irregular it could only be attacked by a direct appeal. See Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E. 2d 772 (1987). No appeal was taken from the judgment dated 17 March 1986, incorporating the Deed of Separation into the divorce judgment, which ordered plaintiff to pay alimony to defendant.

Next, plaintiff argues the trial court erred in ordering him to pay attorney’s fees in the amount of $500.00. Citing no authority, he argues the court may not order attorney’s fees when the contempt proceeding is brought to enforce a property settlement. In effect, plaintiff contends the judgment of 17 March 1986 did not require him to pay alimony but instead constituted a property settlement between the parties. As pointed out above, the Deed of Separation incorporated into the judgment merely set forth the terms of the order. The Deed of Separation clearly provides that plaintiff would pay defendant $550.00 per month until defendant “remarries or dies, whichever event shall occur first.” Clearly this is not a property settlement; it is alimony, and as such the order requiring plaintiff to pay attorney’s fees is proper.

Affirmed.

Judges Johnson and Parker concur.