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  "name": "BARBARA E. WILLIAMS, Plaintiff v. BENNIE S. WILLIAMS, Defendant",
  "name_abbreviation": "Williams v. Williams",
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    "parties": [
      "BARBARA E. WILLIAMS, Plaintiff v. BENNIE S. WILLIAMS, Defendant"
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      {
        "text": "JOHN, Judge.\nPlaintiff appeals the trial court\u2019s judgment dismissing her complaint. She contends the court erred by: (1) finding a written agreement between the parties to be a marital contract as opposed to a separation agreement; and (2) concluding the contract was void as against public policy. We find plaintiffs arguments unpersuasive.\nPertinent facts and procedural information are as follows: Barbara E. Williams (plaintiff) and Bennie S. Williams (defendant) married 6 September 1959 and separated 30 May 1985. On 18 April 1988, the parties entered into an agreement (the Agreement) which recited that they were \u201cconsidering the resumption of cohabitation,\u201d and required defendant to pay plaintiff $500.00 per month throughout the course of their marriage, the payments to continue \u201cshould [the] parties hereinafter again separate.\u201d Plaintiff and defendant separated anew in August 1993.\nPlaintiff filed the instant action seeking specific performance of the Agreement and payment of $1,700.00 in alimony arrearage. Defendant answered admitting execution of the Agreement, but asserting it was void as a matter of public policy. He further moved that plaintiff\u2019s complaint be dismissed.\nDefendant\u2019s motion was heard 16 December 1993 before the Honorable Frank M. Montgomery who entered judgment in pertinent part as follows:\n2. That the basis of the Plaintiff\u2019s Complaint was Section Eight (8) of the Separation Agreement which reads as follows:\n8. Husband and Wife agree that Husband shall continue to make a payment of Five Hundred Dollars ($500.00) per month to Wife for her suport [sic] and maintenance. Both parties acknowledge that should parties hereinafter again separate, Husband shall continue to pay permanent alimony of Five Hundred Dollars ($500.00) per month pursuant to prior Agreement of parties; that he will be collaterally estopped from pleading the resumption of marital relationship as a bar to his continued paying this sum; he acknowledges that the resumption of marital relationship shall have no effect on the payment of this amount as his obligation, to pay said amount was and remains an intrical part of this property settlement and for that reason not modifiable and not affected by the resumption. [emphasis added]\n6. That the contract between the parties is not a \u201cpremarital agreement\u201d as defined by North Carolina General Statute 52B-2(1) because it is not an agreement \u201cbetween prospective spouses made in contemplation of marriage and to be effective upon marriage\u201d in that the parties hereto were married at the time of the making of this agreement.\n7. That the agreement between the parties was not a separation agreement pursuant to North Carolina General Statute 52-10.1, because it was not executed in anticipation of a separation, but, in fact was occasioned by a resumption of the marital relationship between the parties; and further that its provisions, including specifically the provisions of Paragraph Eight (8), were to apply during the marital relationship as well as should there be a later separation of the parties.\n8. That the agreement between the parties is a contract . between husband and wife pursuant to North Carolina General Statute Section 52-10.\nBased on these findings, the court concluded:\n8. That Paragraph Eight (8) of the agreement between Plaintiff and Defendant violates public policy . . . and is, therefore, void.\nThe court concluded by ordering plaintiffs complaint dismissed, and plaintiff gave notice of appeal to this Court 10 January 1994.\nPlaintiff contends the trial court erred by finding the Agreement not to be a separation agreement under N.C. Gen. Stat. \u00a7 52-10.1 (1991), but rather a marital contract as provided in N.C. Gen. Stat. \u00a7 52-10 (1991) which by its terms was void as against public policy. We disagree.\nN.C.Gen. Stat. \u00a7 52-10(a) (1991) provides:\nContracts between husband and wife not inconsistent with public policy are valid, and any . . . married persons may, with or without a valuable consideration, release and quitclaim such rights which they . . . may have acquired by marriage in the property of each other .... No contract. . . between husband and wife during their coverture shall be valid . . . for a longer time than three years . . . unless it is in writing and is acknowledged by both parties before a certifying officer.\nG.S. \u00a7 52-10.1 states in pertinent part:\nAny married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid and binding in all respects ....\nA \u201cseparation agreement\u201d is defined as \u201c \u2018a contract between spouses providing for marital support rights and . . . executed while the parties are separated or are planning to separate immediately.\u2019 \u201d Small v. Small, 93 N.C. App. 614, 620, 379 S.E.2d 273, 277, disc. review denied, 325 N.C. 273, 384 S.E.2d 519 (1989) (citation omitted). \u201c[T]he heart of a separation agreement is the parties\u2019 intention and agreement to live separate and apart forever . ...\u201d In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976) (citation omitted).\nThe statutory sections set out above are distinguishable in that a separation agreement may affect support rights whereas G.S. \u00a7 52-10 refers only to \u201crights ... in property\u201d; further, as indicated by the terms requiring formalities for contracts entered into \u201cduring cover-ture,\u201d a contract under G.S. \u00a7 52-10 may be entered into at any time during marriage, not only in contemplation of separation or divorce. See Edwards v. Edwards, 102 N.C. App. 706, 708, 403 S.E.2d 530, 531, disc. review denied, 329 N.C. 787, 408 S.E.2d 518 (1991) (under G.S. \u00a7 52-10.1, \u201cparties to a divorce may enter into [an] agreement to settle the question of alimony . . .\u201d), and Eubanks v. Eubanks, 273 N.C. 189, 195, 159 S.E.2d 562, 567 (1968) (G.S. \u00a7 52-10, \u201c \u2018relates to the release of an interest in property, but has no bearing whatsoever on the right of a wife to support\u2019 \u201d (citation omitted)). See also Howell v. Landry, 96 N.C. App. 516, 530, 386 S.E.2d 610, 618 (1989), disc. review denied, 326 N.C. 482, 392 S.E.2d 90 (1990) (although G.S. \u00a7 52-10 requires acknowledgment of contracts between spouses entered into \u201cduring coverture, the period of marriage, it does not require acknowledgment for premarital agreements.\u201d)\nThe document at issue herein recites that on the date of execution, the parties were \u201cliving separate and apart.\u201d However, it further provides that \u201cthe parties may desire to resume cohabitation as Husband and Wife in an effort to reconcile their differences,\u201d and that \u201c[o]n the date of the signing of [the] agreement, the parties are considering the resumption of cohabitation.\u201d Thereafter, defendant is required to pay plaintiff $500.00 monthly, and \u201cacknowledges that the resumption of marital relationship shall have no effect on the payment of this amount. . . .\u201d\nThe express and unambiguous language of the Agreement thus declares that the parties were not contemplating living \u201cseparate and apart forever,\u201d Adamee, 291 N.C. at 391, 230 S.E.2d at 545, when they executed the document, but rather were on the verge of resuming marital relations. Under Adamee and Small, therefore, the trial court did not err in determining the Agreement was not a separation agreement under G.S. \u00a7 52-10.1. See Robuck v. Robuck, 20 N.C. App. 374, 201 S.E.2d 557 (1974) (agreement which stated parties \u201chave encountered serious marital difficulties\u201d and one party is contemplating filing for divorce, id. at 375, 201 S.E.2d at 558, was not a separation agreement because face of document was silent with respect to parties\u2019 desire to live separate and apart), id. at 379, 201 S.E.2d at 561; cf. Stegall v. Stegall, 100 N.C. App. 398, 411, 397 S.E.2d 306, 313 (1990), disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991) (from terms of agreement which provide \u201cparties shall henceforth live separate and apart. . . free from all interference, authority and control, direct or indirect, by the other, as fully as if each party were unmarried\u201d and circumstances of execution, \u201cit is obvious\u201d parties intended a separation agreement).\nIn addition, we note the following language in paragraph five of plaintiffs complaint:\n[T]he parties reconciled and entered into a Post Nuptial Agreement on April 18, 1988, a copy of which is attached hereto and incorporated by reference .... (emphasis added).\nDefendant in his answer admitted \u201cthe parties entered into a Post Nuptial Agreement which included the language specified in the Complaint,\u201d but asserted the language was \u201cvoid as a matter of public policy.\u201d Had plaintiff considered the Agreement as founded upon the separation of the parties rather than a marital contract during cohabitation, that contention should have been forthcoming at the time her suit was instituted. Plaintiff\u2019s verified allegation that the Agreement was a \u201cPost Nuptial Agreement\u201d having been admitted by defendant, plaintiff cannot now be heard in this Court to assert a contrary position. Crawford v. Crawford, 214 N.C. 614, 618, 200 S.E. 421, 423 (1939) (\u201cin other words, his mouth is shut, and he shall not say, that is not true which he had before in solemn manner asserted to be the truth\u201d).\nNotwithstanding, plaintiff insists the statement in the Agreement that the parties were living separate and apart at the time of execution renders the document a separation agreement. Even were plaintiff\u2019s arguments persuasive, however, it remains well established that resumption of the marital relationship voids executory portions of a separation agreement, i.e., provisions for future alimony payments. Jones v. Lewis, 243 N.C. 259, 261, 90 S.E.2d 547, 549 (1955). See also Sally Burnett Sharp, Semantics as Jurisprudence: The Elevation of Form over Substance in the Treatment of Separation Agreements in North Carolina, 69 N.C.L. Rev. 319, 363 (1991) (\u201creconciliation voids all executory provisions of a settlement agreement, without regard to whether those provisions concern support or property\u201d). \u201c[E]xecu-tory provisions of a separation agreement are those in which \u2018a party binds himself to do or not to do a particular thing in the future.' \u2018Executed\u2019 provisions are those which have been carried out, and which require no future performance.\u201d Carlton v. Carlton, 74 N.C. App. 690, 693, 329 S.E.2d 682, 684 (1985) (citations omitted). Further, should a subsequent separation follow reconciliation, the original agreement is not revived. Hand v. Hand, 46 N.C. App. 82, 85, 264 S.E.2d 597, 599, 300 N.C. 556, 270 S.E.2d 107 (1980). Thus, even assuming arguendo the document at issue herein to be a separation agreement, when plaintiff and defendant resumed marital relations, any obligation on the part of defendant to pay alimony in the future ceased, the contrary provisions of the Agreement notwithstanding. See Schultz v. Schultz, 107 N.C. App. 366, 374, 420 S.E.2d 186, 191 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993).\nHowever, plaintiff maintains \u201c [i]t is totally irrelevant. . . that the parties reconciled after the entry of the agreement.\u201d Because the \u201cproperty settlement and \u2018alimony\u2019 payment[] [provisions] are mutually dependent,\u201d she argues, citing Love v. Mewborn, 79 N.C. App. 465, 468, 339 S.E.2d 487, 489 (1986), disc. review denied, 317 N.C. 704, 347 S.E.2d 43, reconciliation did not terminate the alimony obligation of defendant set out in the Agreement.\nAt issue in Love was the proviso in a \u201cseparation agreement and property settlement\u201d that the husband pay \u201calimony\u201d in the amount of $800.00 per month for a period of ten years. Love, 79 N.C. App. at 465-66, 339 S.E.2d at 488. While this provision arguendo was technically \u201cexecutory\u201d in that the payments continued over a period of time and had not been paid in full, the circumstance in Love is distinguishable from that sub judice in two respects. First, the payments in Love were of defined duration and no clause purported to limit the effect of reconciliation on the parties\u2019 agreement; second, while the periodic payments in Love were designated \u201calimony,\u201d the evidence, including negotiation correspondence between counsel, indisputably indicated the payments were reciprocal consideration for the wife\u2019s relinquishment of her right to certain marital property; reconciliation thus did not affect the payment provisions. Id. at 467-68, 339 S.E.2d at 489. See also Marks v. Marks, 316 N.C. 447, 454-55, 342 S.E.2d 859, 864 (1986) (the test \u201cis whether the support provisions for the dependent spouse \u2018and other provisions for a property division between the parties constitute reciprocal consideration for each other.\u2019 \u201d (citation omitted)), and Morrison v. Morrison, 102 N.C. App. 514, 519, 402 S.E.2d 855, 858 (1991) (if payments not reciprocal consideration for property transfers or if agreement reflects the property settlement was conditioned upon agreement to live separate and apart, executory provisions of the agreement are rescinded upon reconciliation, (citations omitted)).\nIn addition, defendant argues plaintiff \u201cdid not argue\u201d the issue of reciprocal consideration \u201cbefore the trial court and should not be permitted to raise it for the first time on appeal.\u201d Defendant\u2019s representation appears to have merit. See State v. Robbins, 319 N.C. 465, 496, 356 S.E.2d 279, 298, cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226 (1987) (theory not presented to trial court and first raised on appeal not properly before appellate court.)\nWe note plaintiff as appellant bore ultimate responsibility for compilation of the record on appeal and for inclusion therein of evidence and other materials pertinent to the assignments of error raised. Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988). No transcript of the hearing below was included in the instant record, and we find no refutation in the record as compiled of defendant\u2019s assertion.\nEven had plaintiff properly raised the issue below, moreover, her argument is unavailing. The trial court\u2019s order stated it ruled\nafter review of the Plaintiff\u2019s Complaint and Defendant\u2019s Answer and Motion, including the Bench Brief presented by the Defendant, and after review of relevant case law, as well as statutes, as well as the arguments of counsel....\nAs noted above, plaintiff argues the property settlement and alimony payment provisions of the Agreement were \u201cmutually dependent,\u201d that is, they constituted reciprocal consideration for each other and are thus deemed \u201cintegrated.\u201d Morrison, 102 N.C. App. at 519, 402 S.E.2d at 858. In Morrison, this Court pointed out that:\n[t]here exists a presumption that the provisions of a marital agreement are separable and the burden of proof is on the party claiming that the agreement is integrated. \u2018This presumption of separability prevails unless the party with the burden to rebut the presumption proves by a preponderance of the evidence that an integrated agreement was in fact intended by the parties.\u2019 \u2018However, where the parties include unequivocal integration or non-integration clauses in the agreement, this language governs.\u2019\nId. at 520, 402 S.E.2d at 859 (citations omitted). In Hayes v. Hayes, 100 N.C. App. 138, 147-48, 394 S.E.2d 675, 680 (1990), moreover, we emphasized that \u201c[i]n those cases where no . . . explicit clauses exist, an evidentiary hearing to determine the parties\u2019 intent is required.\u201d\nThe Agreement herein contains no \u201cunequivocal,\u201d Morrison, 102 N.C. App. at 520, 402 S.E.2d at 859, language reflecting the parties\u2019 intent concerning integration. While it contains the typical \u201cboilerplate\u201d phraseology \u201cin consideration of the mutual covenants herein contained,\u201d that statement is contradicted by a later condition to the effect that \u201cif any provision of this agreement is held to be invalid or unenforceable, all other provisions hereof shall nevertheless continue in full force and effect.\u201d\nThe appearance of the incomprehensible expression \u201cintrical\u201d in the Agreement creates further confusion. While the drafter, which the Agreement reveals to have been plaintiff\u2019s former counsel, see Krickhan v. Krickhan, 34 N.C. App. 363, 367, 238 S.E.2d 184, 187 (1977) (ambiguity in written agreement construed against drafter) may have wished to write \u201cintegral,\u201d that is not what the Agreement states. The expression \u201cintrical\u201d is not contained in Webster\u2019s Third New International Dictionary (1966); it is therefore impossible to assign a meaning to it absent testimony from the drafter as to whether \u201cintegral\u201d or some other word was contemplated. See Bowles v. Bowles, 237 N.C. 462, 465, 75 S.E.2d 413, 415 (1953) (utilizing Webster\u2019s New International Dictionary to ascertain the meaning of word used in separation agreement facilitated court\u2019s adherence to \u201c \u2018the cardinal rule ... in determining the effect of property settlement agreements,\u2019 \u201d i.e., \u201c \u2018to ascertain the intention of the parties as expressed in the agreement, and to carry out such intention as nearly as may be done without violence to the language used.\u2019 \u201d (citation omitted.))\nBecause the Agreement lacks \u201cunequivocal integration or non-integration\u201d language, Morrison, 102 N.C. App. at 520, 402 S.E.2d at 859, and contains ambiguities and inconsistencies, therefore, the presumption of separability of the provisions prevails unless the party with the burden of proof has presented sufficient evidence to convince the trier of fact that an integrated agreement was intended. Hayes, 100 N.C. App. at 147, 394 S.E.2d at 680. The court\u2019s order, however, reflects that plaintiff presented no evidence and nothing in the record suggests plaintiff was in any way thwarted by the trial court from presenting evidence. See Hayes at 148, 394 S.E.2d at 680. Plaintiff thus failed in her burden of proof. See Marks, 316 N.C. at 458, 342 S.E.2d at 865 (where no evidence appears in record which would support a contrary result, \u201ctrial judge\u2019s findings must be presumed to have been based on the apparent failure of plaintiff to produce such evidence as was required in order for her to carry her burden of proof.\u201d).\nThe Agreement thus is not an integrated property settlement wherein the executory provision would withstand reconciliation of the signatories.\nPlaintiff next challenges the trial court\u2019s determination that paragraph 8 of the Agreement was void as against public policy. We affirm the court\u2019s conclusion.\nN.C. Gen. Stat. \u00a7 52-10(a) states that \u201c[contracts between husband and wife not inconsistent with public policy are valid . . . .\u201d By implication, therefore, those contracts between spouses which conflict with public policy are void. See In re Estate of Tucci, 94 N.C. App. 428, 437, 380 S.E.2d 782, 787, disc. review denied, 325 N.C. 271, 384 S.E.2d 514 (1989), aff\u2019d per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990) (\u201cmarital agreements must always comply with public policy\u201d).\nIn Matthews v. Matthews, 2 N.C. App. 143, 162 S.E.2d 697 (1968), the parties entered into a marital contract following twelve years of marriage and divorced approximately fifteen years subsequent to execution of the contract. Id. at 144-45, 162 S.E.2d at 697-98. Plaintiff-husband thereafter petitioned for partition and sale of lands held as tenants in common. Id. at 144, 162 S.E.2d at 697. Defendant-wife relied upon the marital contract in which plaintiff had promised \u201cthat if. I ever leave Edith Summers Matthews, everything I have or will have will be hers to have and hold for the benefit of our children and herself \u2014 I make no claim on anything we own jointly, and separately.\u201d Id. at 145, 162 S.E.2d at 698. Plaintiff\u2019s demurrer to the response of defendant was sustained by the trial court. Id.\nOn appeal, this Court determined the contract, \u201cif [it] met the tests of consideration and clarity,\u201d id. at 147, 162 S.E.2d at 699, would constitute merely \u201ca promise looking to a future separation . . . .\u201d Id. We concluded such promises \u201cwill not be sustained\u201d because such an agreement\nwould induce the wife to goad the husband into separating from her in order that the agreement could be put into effect and she could strip him of all of his property. Our society has been built around the home, and its perpetuation is essential to the welfare of the community. And the law looks with disfavor upon an agreement which will encourage or bring about a destruction of the home.\nId. Based on the foregoing reasoning, we held the contract was \u201cunenforceable because it is void on grounds of public policy.\u201d Id.\nParagraph 8 of the Agreement similarly comprises a promise looking towards a future separation in stating that \u201cshould parties hereinafter again separate, [defendant] shall continue to pay permanent alimony of Five Hundred Dollars ($500.00) per month . ...\u201d Such a proviso would serve to discourage plaintiff from putting forth a concerted effort to maintain the marriage because of the knowledge she would continue to receive alimony regardless of whether the parties separated following reconciliation. Accordingly, the trial court did not err in concluding that paragraph 8 of the Agreement was void as against public policy. See Morrison, 102 N.C. App. at 520, 402 S.E.2d at 859 (citing Adamee, 291 N.C. at 391, 230 S.E.2d at 545) (\u201ccontracts which provide that reconciliation will not affect the terms of a separation agreement violate the policy behind separation agreements and are therefore void\u201d); see also Tucci, 94 N.C. App. at 438, 380 S.E.2d at 788 (public policy will not permit parties to enforce the \u201cseparation\u201d provisions of their agreement, i.e., support and alimony, and yet live together as a married couple).\nThe dissent acknowledges we are bound by precedent set by earlier panels of this Court unless overturned by our Supreme Court, In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), yet declines to respect Matthews and subsequent cases neither overruled nor modified by the higher court. The dissent justifies its position by the perception of a purported change in public policy.\nSince Matthews was decided nearly thirty years ago, the General Assembly, presumed to know the content of the decisions of our courts, see Whittington v. N.C. Dept. of Human Resources, 100 N.C. App. 603, 606, 398 S.E.2d 40, 42 (1990) and Blackmon v N.C. Dept. of Correction, 118 N.C. App. 666, 673, 457 S.E.2d 306, 310 (1995), has enacted legislation affecting marital agreements as indicated by the dissent. However, these statutes in nowise abrogate the thrust of Matthews, Tucci and other decisions to the effect that spouses who lack the intent to \u201clive separate and apart forever,\u201d Adamee, 291 N.C. at 391, 230 S.E.2d at 545, may not contravene public policy by contracting regarding support and alimony. \u201c[W]here the law-making power speaks on a particular subject over which it has power to legislate, public policy in such cases is what the law enacts.\u201d Cauble v. Trexler, 227 N.C. 307, 311, 42 S.E.2d 77, 80 (1947).\nThe General Assembly, by declining to negate Matthews in subsequent legislation, has spoken, see In re Taxi Co., 237 N.C. 373, 376-77, 75 S.E.2d 156, 158-59 (1953) (where a statute sets forth the instances of its coverage, other coverage is necessarily excluded under the maxim expressio unius est exclusio alterius, i.e., \u201cthe expression of one thing is the exclusion of another\u201d); the dissent misperceives a change in public policy, see Vinson v. Chappell, 3 N.C. App. 348, 350, 164 S.E.2d 631, 633, aff\u2019d, 275 N.C. 234, 166 S.E.2d 686 (1968) (function of a court is to declare what the law is and not what the law ought to be, and \u201ca court will not ordinarily substitute its judgment for that of the Legislature\u201d). The trial court did not err.\nAffirmed.\nJudge WYNN concurs.\nJudge GREENE dissents.",
        "type": "majority",
        "author": "JOHN, Judge."
      },
      {
        "text": "Judge Greene\ndissenting.\nI agree with the majority that under the current law in this State, the Agreement, because it was executed in contemplation of \u201cresumption of cohabitation,\u201d is not a separation agreement within the meaning of N.C. Gen. Stat. \u00a7 52-10.1. See In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976) (intent to live separate and apart is \u201cthe heart of a separation agreement\u201d). I also agree, for the reasons given by the majority, that the support and property provisions of the Agreement are not integrated and that reconciliation therefore voids the executory provisions of the Agreement.\nAlthough not a separation agreement within the meaning of section 52-10.1, I believe the Agreement qualifies as a valid contract within the meaning of section 52-10.1 do not agree with the majority that the Agreement is void on the grounds it is \u201cinconsistent with public policy.\u201d I acknowledge that the public policy in 1968, as articulated in the Matthews opinion relied on by the majority, would not support the agreement at issue and require that it be rejected as invalid. The Matthews opinion does not, however, represent the current public policy with regard to postmarital contracts. The North Carolina General Assembly first evidenced a change in public policy as to marital agreements in 1981 with the adoption of N.C. Gen. Stat. \u00a7 50-20(d). This statute permits parties \u201c[bjefore, during or after marriage\u201d to agree to the distribution of the marital property at the time of their separation. Thus, an agreement entered pursuant to this statute is valid even though the parties continue to live together after its execution. Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97 (1984). In 1987 the General Assembly again indicated its choice of public policy when it adopted the Uniform Premarital Agreement Act (UPAA). N.C.G.S. ch. 52B (1987). Prior to the adoption of the UPAA, the public policy forbad some premarital agreements on the grounds that they encouraged divorce. 1 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 1.13(B) (5th ed. 1993). Under the UPAA, parties who anticipate marriage are permitted to contract with regard to support and property rights that may arise upon divorce. N.C.G.S. \u00a7 52B-4(a) (1987). Thus with regard to property settlement agreements and premarital agreements, the General Assembly has decided that such agreements do not incite divorce or separation but instead promote marital stability by defining the expectations and responsibilities of the parties.\nThere is no justification for adhering to a different public policy with regard to non-property postmarital agreements, especially when the agreement, as in this case, is entered into between married parties who are not living together. Indeed because N.C. Gen. Stat. \u00a7 52B-4(a), N.C. Gen. Stat. \u00a7 50-20(d) and N.C. Gen. Stat. \u00a7 52-10(a) each relate to contracts in the family, they should be construed together to ascertain the legislative intent. See Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984). When read in pari materia, N.C. Gen. Stat. \u00a7 52-10(a) must be construed to reflect the same public policy accepted by the General Assembly in its adoption of N.C. Gen. Stat. \u00a7 52B-4(a) and N.C. Gen. Stat. \u00a7 50-20(d). Therefore, the Agreement must not be read as discouraging the marriage but instead as encouraging it. Indeed the fact that the parties resumed their marital relationship soon after the Agreement was executed indicates it encouraged, rather than discouraged, resumption of the marriage. As such the Agreement is not inconsistent with the public policy of this State and is enforceable. I would reverse and remand.\n. The requirement that in order to execute a valid separation agreement the parties must have a present intent to live separate and apart, has been criticized. Homer H. Clark, Jr., The Law of Domestic Relations in the United States \u00a7 18.1 (2d ed. 1988). Professor Clark notes that the rule was based on the idea that to permit married parties living together to contract with regard to property division and support rights would in someway be \u201cconducive to divorce.\u201d Id. \u201cIt was never made quite clear why [such an agreement] . . . was always and necessarily conducive to divorce, but the courts assumed that it was.\u201d Id. He argues that \u201c[n]ow that fault is no longer the basis for the grounds for divorce . . . little is to be served by continuing to reject separation agreements on the ground that they are conducive to divorce.\u201d Id. \u201cThe new [divorce] statutes make it plain that there is no longer any general public policy opposed to divorce. ... It therefore seems no longer rational to require that the parties separate before they may make a valid separation agreement.\u201d Id. Although I agree with Professor Clark, I am bound by the previous decisions of this Court and the Supreme Court holding to the contrary.",
        "type": "dissent",
        "author": "Judge Greene"
      }
    ],
    "attorneys": [
      "Wallace & Whitley, by Robert L. Inge, for plaintiff-appellant.",
      "Carlyle Sherrill for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "BARBARA E. WILLIAMS, Plaintiff v. BENNIE S. WILLIAMS, Defendant\nNo. 9419DC320\n(Filed 21 November 1995)\n1. Divorce and Separation \u00a7 3 (NCI4th)\u2014 agreement made on verge of resuming marital relations \u2014 no separation agreement\nThe trial court did not err in determining that the parties\u2019 agreement was not a separation agreement under N.C.G.S. \u00a7 52-10.1 where the express and unambiguous language of the agreement declared that the parties were not contemplating living separate and apart forever when they executed the document, but rather were on the verge of resuming marital relations; plaintiffs verified allegation that the agreement was a \u201cPost Nuptial Agreement\u201d was admitted by defendant, and plaintiff could not later assert a contrary contention; and the resumption of marital relations would void executory provisions of the separation agreement, in this case, provisions for future alimony payments.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 819 et seq.\n2. Divorce and Separation \u00a7 35 (NCI4th)\u2014 no integration or non-integration language in agreement \u2014 no integrated property settlement\nThe parties\u2019 agreement was not an integrated property settlement wherein the executory provision would withstand reconciliation of the signatories where the agreement lacked unequivocal integration or non-integration language and contained ambiguities and inconsistencies.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 852 et seq.\n3. Divorce and Separation \u00a7 14 (NCI4th)\u2014 promise to pay alimony upon future separation \u2014 agreement void as against public policy\nThe trial court did not err in concluding that one paragraph of the parties\u2019 agreement was void as against public policy since that paragraph comprised a promise looking toward a future separation in stating that \u201cshould parties hereinafter again separate, [defendant] shall continue to pay permanent alimony of Five Hundred Dollars ($500.00) per month . . . ,\u201d and such proviso would serve to discourage plaintiff from putting forth a concerted effort to maintain the marriage because of the knowledge she would continue to receive alimony regardless of whether the parties separated following reconciliation.\nAm Jur 2d, Divorce and Separation \u00a7 822.\nJudge Greene dissenting.\nAppeal by plaintiff from judgment filed 3 January 1994 by Judge Frank M. Montgomery in Rowan County District Court. Heard in the Court of Appeals 27 October 1994.\nWallace & Whitley, by Robert L. Inge, for plaintiff-appellant.\nCarlyle Sherrill for defendant-appellee."
  },
  "file_name": "0707-01",
  "first_page_order": 741,
  "last_page_order": 753
}