{ "id": 8523314, "name": "LAURA LEIGH BOONE (STOTT) BROMHAL v. E. GREGORY STOTT", "name_abbreviation": "Bromhal v. Stott", "decision_date": "1994-09-06", "docket_number": "No. 9310DC611", "first_page": "250", "last_page": "256", "citations": [ { "type": "official", "cite": "116 N.C. App. 250" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "404 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "488" }, { "page": "488" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519722 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0110-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 52-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "408 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557060, 2554055, 2556786, 2555379, 2555903 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0787-02", "/nc/329/0787-03", "/nc/329/0787-04", "/nc/329/0787-05", "/nc/329/0787-01" ] }, { "cite": "403 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "530" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525525 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0706-01" ] }, { "cite": "167 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553447 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0342-01" ] }, { "cite": "189 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547570 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0064-01" ] }, { "cite": "354 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169805 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0262-01" ] }, { "cite": "318 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526932 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0701-01" ] }, { "cite": "392 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521453 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0153-01" ] }, { "cite": "194 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "139" } ], "opinion_index": 1 }, { "cite": "282 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567948 ], "year": 1973, "pin_cites": [ { "page": "592" } ], "opinion_index": 1, "case_paths": [ "/nc/282/0585-01" ] }, { "cite": "658 F.2d 1021", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 474421 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/f2d/658/1021-01" ] }, { "cite": "690 F.2d 1359", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1474029 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1363" } ], "opinion_index": 1, "case_paths": [ "/f2d/690/1359-01" ] }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180" } ], "opinion_index": 1 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "814-15" } ], "opinion_index": 1 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "pin_cites": [ { "page": "289" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "404 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "103 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519722 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/103/0110-01" ] }, { "cite": "408 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "329 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557060, 2554055, 2556786, 2555379, 2555903 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/329/0787-02", "/nc/329/0787-03", "/nc/329/0787-04", "/nc/329/0787-05", "/nc/329/0787-01" ] }, { "cite": "403 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "102 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525525 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/102/0706-01" ] } ], "analysis": { "cardinality": 777, "char_count": 16517, "ocr_confidence": 0.749, "pagerank": { "raw": 6.515628395581045e-07, "percentile": 0.9607776360706743 }, "sha256": "72214db033c1c151257039e960109f6a33572c9cc2b3542c3d9d493f60481e73", "simhash": "1:3b8a78eea05aff56", "word_count": 2649 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge GREENE concurring in part and dissenting in part with separate opinion." ], "parties": [ "LAURA LEIGH BOONE (STOTT) BROMHAL v. E. GREGORY STOTT" ], "opinions": [ { "text": "WYNN, Judge.\nThe parties were married to each other on 23 April 1977 and separated on or about 17 August 1987. Two minor children were bom to the parties during the marriage. On 27 August 1987 the parties executed a separation agreement and property settlement. Paragraph 23 of the separation agreement provides:\n[Iljusband will pay the sum of $175 per week as child support pending the sale of the marital home. . . . After the aforesaid sale is consummated and the funds therefrom disbursed, the parties agree to renegotiate the amount of child support to be contributed by husband; however, husband agrees that such support payment will not be less than twenty-five (25%) percent of his adjusted gross income.\nOn 25 November 1987, the parties executed a modification agreement to the 27 August separation agreement. It provided that defendant would purchase plaintiffs interest in the marital home and that upon plaintiff\u2019s vacation of the house, \u201c[h]usband shall thereafter be required to begin making child support payments in accordance with the provisions for computing such payments detailed in paragraph 23 of the parties Separation Agreement dated 25 August 1987.\u201d\nDefendant did purchase plaintiffs interest in the home and plaintiff and the children vacated it in August 1988. Defendant reoccupied the home but never increased the amount of child support payments, even though the $175 per week he was paying was less than 25% of his income.\nOn 28 December 1988, plaintiff filed a complaint for specific performance of the separation agreement and modification agreement. An amended complaint was filed on 13 June 1989. Plaintiff asked for an order requiring defendant to pay child support in an amount not less than 25% of his gross monthly income since 1 August 1988 and continuing thereafter. Plaintiff also requested attorney\u2019s fees and reimbursement of expenses pursuant to the paragraph of the separation agreement providing:\nSuit costs. If either party shall fail to keep and perform any agreement or provision hereof, the other party shall be entitled to recover reasonable attorney\u2019s fees and any and all other expenses incurred in any action instituted to enforce provisions of this agreement.\nThe parties entered into a stipulation agreement on 27 September 1989, which recited, among other things, that the parties agree that the separation agreement is valid and enforceable; that a district court judge may review the agreement and determine all matters in controversy between the parties based on it; and that the modification agreement is valid and enforceable and \u201cshall be reviewed and interpreted according to its terms and the intent of the parties.\u201d\nPlaintiff moved for summary judgment on 6 December 1989. On 17 January 1990, Judge Jerry Leonard granted partial summary judgment for plaintiff, finding that, pursuant to the parties\u2019 stipulation agreement, the Separation Agreement and Modification Agreement are valid and enforceable; beginning at the time of sale or transfer of the marital residence, defendant was required to provide child support payments of \u201cnot less than twenty-five (25%) percent of his adjusted gross income\u201d; defendant is obligated under the agreements to provide medical insurance and costs, in excess of coverage; and \u201cin any and all other respects Defendant\u2019s liability pursuant to the terms of the existing Agreements is established.\u201d Summary judgment was partial because, although plaintiff won summary judgment as to defendant\u2019s liability, the question of damages was reserved for later hearing.\nSubsequent to Judge Leonard\u2019s 17 January 1990 order, plaintiff filed a separate and independent lawsuit pursuant to Chapter 50 of the North Carolina General Statutes, seeking, among other things, court-ordered child support. By special commission, Judge Lowry M. Betts heard the case on 11 April 1990 and, on 28 January 1991, issued a child support order requiring defendant to pay plaintiff $598.73 per month.\nWhen the specific performance case next arose for hearing in the trial court, Judge O. Henry Willis, Jr. determined that due to the entry of Judge Betts\u2019s child support order, plaintiff \u201celected her remedy\u201d when she pursued the child support action. The court granted summary judgment for defendant, determining that plaintiff\u2019s claim for specific performance of the child support provision of the separation agreement would terminate as of the date of entry of Judge Betts\u2019s order and that plaintiff\u2019s specific performance case should be repleaded \u201cin the nature of a contract action.\u201d In other words, plaintiff\u2019s claim for child support was limited by summary judgment to a claim for arrearages in child support, among other things, accrued during the time from the date of activation of payments pursuant to the separation agreements to the date child support payments were ordered by the court. This order was entered 10 October 1991.\nOn 15 and 16 October 1992, Judge Willis heard the contract case. Judgment was announced in open court on 16 October 1992 and entered on 3 November 1992. Plaintiff was awarded $22,550.49, plus interest, for unpaid child support and reimbursement for one additional marital debt, and defendant was ordered to compensate plaintiff for attorney\u2019s fees incurred at all stages of the case in the amount of $40,000. Defendant appeals this judgment.\nWe dispose of defendant\u2019s first four arguments without addressing them because the orders from which they arise were not designated in his notice of appeal. Defendant\u2019s first four arguments deal with previous rulings by the court: an award of attorney\u2019s fees to plaintiff and denial of attorney\u2019s fees to defendant on an earlier motion in the cause; the court\u2019s partial summary judgment ruling of 17 January 1990; and the court\u2019s denial of defendant\u2019s summary judgment motion of 10 October 1991 and subsequent denials of defendant\u2019s renewed motions for summary judgment on the issue of accord and satisfaction. There are two notices of appeal in the record. Both designate appeal from Judge Willis\u2019s judgment. One was filed on 28 October 1992, following the oral entry of judgment; the other was filed on 20 November 1992, following written entry of judgment. The notices clearly and exclusively recite that notice of appeal is given only as to that judgment. Rule 3(a) of the North Carolina Rules of Appellate Procedure requires that a notice of appeal \u201cmust designate the judgment or order from which appeal is taken.\u201d Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990); Brooks, Comm\u2019r of Labor v. Gooden, 69 N.C. App. 701, 318 S.E.2d 348 (1984). Due to a lack of jurisdiction, then, we do not address defendant\u2019s first four issues.\nIn addition, defendant abandoned several of his arguments by failing to brief them or failing to cite any authority supporting them pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure, which provides, \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned. The body of the argument shall contain citations of the authorities upon which the appellant relies.\u201d See also Byrne v. Bordeaux, 85 N.C. App. 262, 354 S.E.2d 277 (1987).\nWe are left with the following assignments of error. First, defendant assigns error to the trial court\u2019s finding of fact and conclusion of law that defendant\u2019s tendering of checks \u201cand Plaintiff\u2019s endorsement and negotiation of same did not constitute an accord and satisfaction with respect to child support.\u201d Defendant argues that plaintiff is precluded from recovering arrearages because her endorsement and negotiation of defendant\u2019s checks constitutes an accord and satisfaction.\n\u201cAccord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement.\u201d 1 Strong\u2019s North Carolina Index 4th, Accord & Satisfaction \u00a7 1 (1990). In order for accord and satisfaction to be a successful defense, there must have been a negotiation or agreement between the parties concerning payment or acceptance of less than the full amount owed. Fruit & Produce Packaging Co. v. Stepp, 15 N.C. App. 64, 189 S.E.2d 536 (1972). This agreement must be supported by consideration. Baillie Lumber Co. v. Kincaid Carolina Corp., 4 N.C. App. 342, 167 S.E.2d 85 (1969). There is no evidence on the record of an agreement between the parties nor of consideration passing between them. We thus find the accord and satisfaction defense inapplicable here and affirm the trial court\u2019s finding of fact.\nFinally, defendant appeals the trial court\u2019s award of attorney\u2019s fees to plaintiff, granted under the clause in the separation agreement providing:\nSuit costs. If either party shall fail to keep and perform any agreement or provision hereof, the other party shall be entitled to recover reasonable attorney\u2019s fees and any and all other expenses incurred in any action instituted to enforce provisions of this agreement.\nIn Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 518 (1991), this Court upheld similar language in a separation agreement which indemnified the non-defaulting party. This Court ruled that under N.C. Gen. Stat. \u00a7 52-10.1, \u201cseparation agreements are \u2018binding in all respects\u2019 so long as they are \u2018not inconsistent with public policy.\u2019 \u201d Edwards, 102 N.C. App. at 713, 403 S.E.2d at 530. This Court concluded that there is \u201cnothing inconsistent with public policy in the . . . indemnity clause, and the agreement was executed pursuant to the statute.\u201d Id.\nIn Carter v. Foster, 103 N.C. App. 110, 404 S.E.2d 484 (1991), this Court concluded that \u201cparties may, in settling disputes, agree to the payment of attorney\u2019s fees.\u201d Carter, 103 N.C. App. at 115, 404 S.E.2d at 488. In the instant case, the \u201cSeparation Agreement and Property Settlement Agreement\u201d entered into by the parties recites that \u201cunfortunate differences\u201d arose between them and that it was in the \u201cbest interest\u201d of each to enter into the agreement. Included among the provisions were waivers by each of \u201cany and all. . . rights arising out of the marriage relationship, in and to any and all property now owned\u201d by the other, of \u201cany claim against the other for the rights of \u2018Equitable Distribution,\u2019 \u201d of \u201call claims and demands against the other for support, maintenance and alimony,\u201d and of \u201cany [prior] conduct which may have constituted a basis for any legal claim by either party against the other.\u201d In addition, the agreement contained a \u201cmutual release\u201d by each party \u201cfrom all causes of action, claims, rights, or demands whatsoever, in law or equity, which either . . . had or has against the other,\u201d save for absolute divorce. This language clearly constitutes an \u201cagreement settling all . . . claims,\u201d Carter, 103 N.C. App. at 115, 404 S.E.2d at 488, between the parties. As in Carter, such settlement agreements may include provisions for attorney\u2019s fees. Accordingly, this assignment of error is overruled.\nThe order of the trial court is therefore\nAffirmed.\nJudge JOHN concurs.\nJudge GREENE concurring in part and dissenting in part with separate opinion.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Greene\nconcurring in part and dissenting in part.\nI disagree only with that part of the majority\u2019s opinion affirming the trial court\u2019s award of attorneys\u2019 fees, granted under a provision in the separation agreement. Public policy may very well favor allowing contractual provisions for indemnification of attorneys\u2019 fees. See Stuart M. Speiser, Attorneys\u2019 Fees, ch. 15 \u00a7\u00a7 15:3-15:8 (1973 & Supp. 1993) (discussing competing public policy arguments for and against allowing such provisions). Nonetheless, our Supreme Court has spoken directly to this issue and restated the well-established rule in North Carolina that \u201c[e]ven in the face of a carefully drafted contractual provision indemnifying a party for such attorneys\u2019 fees as may be necessitated by a successful action on the contract itself, our courts have consistently refused to sustain such an award absent statutory authority therefor.\u201d Stillwell Enters., Inc. v. Interstate Equip. Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814-15 (1980). In the face of this unequivocal holding of our Supreme Court, this Court in Edwards, without any citation to Stillwell, upheld an award for attorneys\u2019 fees granted pursuant to a separation agreement even though there was no statutory authorization for such an award. Edwards v. Edwards, 102 N.C. App. 706, 403 S.E.2d 530, disc. rev. denied, 329 N.C. 787, 408 S.E.2d 518 (1991). In addition, this Court in Carter, without any attempt to apply or inteipret Stillwell, approved parties\u2019 contracting for the payment of attorneys\u2019 fees. Carter v. Foster, 103 N.C. App. 110, 404 S.E.2d 484 (1991). I am aware that panels of this Court are bound by prior decisions of this Court, In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), but I do not believe that this rule applies when the prior decisions of this Court do not apply or purport to interpret a previous Supreme Court opinion clearly requiring a contrary result. In this event, this Court has \u201cthe responsibility to follow [Supreme Court] decisions \u2018until otherwise ordered by the Supreme Court\u2019.\u201d Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993). This principle is supported by federal cases, including County of Monroe, Florida v. U.S. Dep\u2019t of Labor, 690 F.2d 1359 (11th Cir. 1982), which is cited by our Supreme Court in Civil Penalty.\nIn Monroe County, the Eleventh Circuit recognizes that the general rule is \u201ca three-judge panel may not disregard precedent set by a prior panel absent an intervening Supreme Court decision or en banc circuit decision.\u201d Id. at 1363. When, however, a decision set by a prior panel does not apply or purport to interpret an earlier controlling Supreme Court decision, the general rule does not apply because a panel is \u201cwithout power to disregard\u201d an earlier controlling Supreme Court decision. Id.; Wilson v. Taylor, 658 F.2d 1021 (5th Cir. 1981).\nAccordingly, because Edwards and Carter did not apply or purport to interpret Stillwell and because Stillwell is unambiguous in its holding and remains the law of this State, this Court is bound to follow Stillwell, not Edwards or Carter. I would therefore reverse the trial court\u2019s enforcement of the attorneys\u2019 fees provision in the parties\u2019 separation agreement.\n. The fact that our Supreme Court denied discretionary review in the Edwards case does not mean that our Supreme Court \u201chas determined that the decision of the Court of Appeals is correct.\u201d Peaseley v. Coke Co., 282 N.C. 585, 592, 194 S.E.2d 133, 139 (1973).", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Greene" } ], "attorneys": [ "Brady, Schilawski, Earls and Ingram, by Michael F. Schilawski, for plaintiff-appellee.", "Jack P. Gulley for defendant-appellant." ], "corrections": "", "head_matter": "LAURA LEIGH BOONE (STOTT) BROMHAL v. E. GREGORY STOTT\nNo. 9310DC611\n(Filed 6 September 1994)\n1. Divorce and Separation \u00a7 408 (NCI4th); Accord and Satisfaction \u00a7 8 (NCI4th)\u2014 child support payments offered\u2014 checks accepted and cashed \u2014 no accord and satisfaction of child support claim\nThe trial court did not err in finding and concluding that defendant\u2019s tendering of checks and plaintiff\u2019s endorsement and negotiation of same did not constitute an accord and satisfaction with respect to child support, since there was no evidence of an agreement between the parties, nor of consideration passing between them.\nAm Jur 2d, Accord and Satisfaction \u00a7\u00a7 18-23, 44; Divorce and Separation \u00a7\u00a7 1037, 1038.\n2. Divorce and Separation \u00a7 547 (NCI4th)\u2014 provision in separation agreement for attorney\u2019s fees \u2014 award proper\nThe trial court did not err in awarding attorney\u2019s fees to plaintiff in an action to enforce the child support provision of a separation and property settlement agreement where the agreement provided for the recovery of attorney\u2019s fees in an action to enforce provisions of the agreement.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 586 et seq., 829.\nJudge Greene concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 3 November 1992 by Judge 0. Henry Willis, Jr. in Wake County District Court. Heard in the Court of Appeals 7 March 1994.\nBrady, Schilawski, Earls and Ingram, by Michael F. Schilawski, for plaintiff-appellee.\nJack P. Gulley for defendant-appellant." }, "file_name": "0250-01", "first_page_order": 280, "last_page_order": 286 }