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    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "DANIEL BRENENSTUHL, Plaintiff v. KAREN E. BRENENSTUHL (MAGEE), Defendant"
    ],
    "opinions": [
      {
        "text": "TIMMONS-GOODSON, Judge.\nDaniel Brenenstuhl (\u201cplaintiff\u2019) appeals the trial court order awarding Karen E. Brenestuhl (Magee) (\u201cdefendant\u201d) twenty-five percent of plaintiff\u2019s military retirement pay. For the reasons discussed herein, we affirm the trial court order.\nThe facts and procedural history pertinent to the instant appeal are as follows: Plaintiff and defendant were married on 26 September 1987. The couple separated on 30 September 1997, and on 26 November 1997, they entered into a separation agreement detailing the division of their marital assets. Paragraph 16 of the separation agreement provided for \u201cproperty division and settlement,\u201d and subsection (F) of the paragraph provided as follows:\nF. Retirement Benefits. Issues of retirement will be addressed at a future date.\nOn 21 January 1999, plaintiff filed a complaint requesting that the trial court dissolve the marriage and grant the parties absolute divorce. Plaintiffs complaint provided two amendments to the separation agreement unrelated to retirement benefits, and the complaint requested that the trial court incorporate the amended separation agreement into its divorce judgment. Defendant did not file an answer to plaintiff\u2019s complaint, and on 5 March 1999, the trial court entered a divorce judgment in the matter. The trial court incorporated the amended separation agreement into its divorce judgment, and it granted the parties absolute divorce.\nIn May 2003, plaintiff retired from the military. On 10 March 2004, defendant filed a motion in the cause requesting that the trial court \u201caward the defendant\u2019s share of the plaintiff\u2019s military retirement pay\u201d to her. Defendant stated that her \u201cshare of the plaintiff\u2019s military retirement pay was specifically reserved for later hearing\u201d by the separation agreement, and that by virtue of plaintiff\u2019s retirement, she was \u201cnow entitled to have her share of the plaintiff\u2019s military retirement pay determined.\u201d\nOn 18 May 2004, the trial court entered an order awarding defendant a percentage of plaintiff\u2019s military retirement pay. In its order, the trial court made the following pertinent findings of fact:\n5. That the Separation and Property Settlement Agreement that was incorporated into and made a part of the divorce Judgment specifically [provided] that: \u201cF Retirement Benefits. Issues of retirement will be addressed at a future date.\u201d The agreement did not require that the issue of retirement benefits [] be asserted or made at or before the granting of the absolute divorce.\n6. The parties contracted among themselves in the Separation Agreement to address the retirement issue at a later date.\n7. That the Separation Agreement specifically reserved the division of the plaintiff\u2019s military retirement pay for a later date.\n8. That neither party made a request for equitable distribution; however, the Separation Agreement allows the defendant to move the Court for division of plaintiffs military retirement pay post divorce.\n10. That there is not a bar to this Court now determining the division of the retirement pay as was provided in the Separation and Property Settlement Agreement.\n11. The fact that the agreement was incorporated into the divorce Judgment makes an even stronger argument that the retirement pay can be divided at this time.\n12. That the plaintiff retired from the military in May of 2003. That he retired in the state of North Carolina and continues to reside in this state.\n13. That the parties were married on September 26, 1987 and they separated on September 30, 1997. That the parties were married and resided together for a period of 10 years. The plaintiff served in the military for approximately 20 years.\nBased upon these findings of fact, the trial court concluded that defendant\u2019s claim for a portion of plaintiffs military retirement pay was preserved by the separation agreement, and that defendant was entitled to twenty-five percent of plaintiffs military retirement pay. Plaintiff appeals.\nThe issue on appeal is whether the trial court erred by awarding defendant a portion of plaintiffs military retirement pay. Plaintiff argues that the incorporation of the separation agreement into the divorce judgment prohibited the trial court from subsequently entering the order in favor of defendant. We disagree.\nBy executing a written separation agreement, married parties forego their statutory rights to equitable distribution and decide between themselves how to divide their marital estate following divorce. N.C. Gen. Stat. \u00a7 50-20(d) (2003). \u201cThese agreements are favored in this state, as they serve the salutary purpose of enabling marital partners to come to a mutually acceptable settlement of their financial affairs.\u201d Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987).\nThe same rules which govern the interpretation of contracts, generally apply to separation agreements. Where the terms of a separation agreement are plain and explicit, the court will determine the legal effect and enforce it as written by the parties. When a prior separation agreement fully disposes of the spouses\u2019 property rights arising out of the marriage, it acts as a bar to equitable distribution.\nBlount v. Blount, 72 N.C. App. 193, 195, 323 S.E.2d 738, 740 (1984) (citations omitted), disc. review denied, 313 N.C. 506, 329 S.E.2d 389 (1985).\nIn the instant case, plaintiff asserts that the separation agreement entered into by the parties acts to bar defendant\u2019s claim to a portion of his military retirement pay, notwithstanding the provision of the separation agreement stating that \u201c[i]ssues of retirement will be addressed at a future date.\u201d Plaintiff contends that the provision is too vague to establish a right in defendant to seek a portion of plaintiff\u2019s military retirement pay subsequent to entry of divorce, and that therefore the trial court was without jurisdiction to entertain defendant\u2019s subsequent claim for a portion of the retirement funds. We cannot agree.\nIn Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983), our Supreme Court addressed an area of family law in \u201cgreat confusion.\u201d At that time, North Carolina was recognizing two types of consent judgments related to divorce. The first type of consent judgment was a court-approved separation agreement, whereby the trial court \u201c \u2018merely approve[d] or sanctioned] the payments . . . and set[] them out in a judgment^]\u2019 \u201d Id. at 385, 298 S.E.2d at 341 (quoting Bunn v. Bunn, 262 N.C. 67, 69, 136 S.E.2d 240, 242 (1964)). In that type of consent judgment, the corresponding trial court order was unmodifiable absent consent of both parties. Walters, 307 N.C. at 385, 298 S.E.2d at 341. In the second type of consent judgment, court-adopted separation agreements, \u201c \u2018the Court adoptfed] the agreement of the parties as its own determination of their respective rights and obligations and orders[.]\u2019 \u201d Id. (quoting Bunn, 262 N.C. at 69, 136 S.E.2d at 242). In that type of consent judgment, property provisions which were not satisfied could be modified by the trial court. Walters, 307 N.C. at 386, 298 S.E.2d at 341. After examining the differing forms of consent judgments, the Court in Walters determined that there was \u201cno significant reason for the continued recognition of two separate forms\u201d of consent judgments. Id. at 386, 298 S.E.2d at 341-42. The Court accordingly rejected the \u201cdual consent judgment approach\u201d and announced a rule that\nwhenever the parties bring their separation agreements before the court for the court\u2019s 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.\nId. at 386, 298 S.E.2d at 342.\nIn the instant case, the incorporated provision of the separation agreement is specifically entitled \u201cRetirement Benefits.\u201d The provision states that \u201c[i]ssues of retirement will be addressed at a future date.\u201d As the Court recognized in Walters, \u201c \u2018[a]n action in court is not ended by the rendition of a judgment, but in certain respects is still pending until the judgment is satisfied.\u2019 \u201d Id. at 385, 298 S.E.2d at 341 (quoting Finance Co. v. Trust Co., 213 N.C. 369, 371, 196 S.E. 340, 341 (1938)). In the instant case, because the trial court had not previously addressed the \u201cissues of retirement\u201d included in the separation agreement, specifically those \u201cRetirement Benefits\u201d delineated by subsection (F)\u2019s heading, we conclude that the trial court had the authority to enter its subsequent order awarding defendant a portion of plaintiff\u2019s military retirement pay.\nWe also conclude that the provision of the separation agreement is not so overly broad or vague as to prevent the trial court from awarding defendant a portion of plaintiff\u2019s retirement pay. We note that \u201c[a]bsent more specific language in the separation agreement to the contrary, the governing law in North Carolina regarding division of retirement benefits is section 50-20.1 of the North Carolina General Statutes.\u201d Gilmore v. Garner, 157 N.C. App. 664, 670, 580 S.E.2d 15, 20 (2003). In the instant case, the separation agreement offered no \u201cspecific language\u201d referring to an alternate means of distribution, and the trial court correctly applied the provisions related to retirement benefits found in N.C. Gen. Stat. \u00a7 50-20.1(d).\nIn light of the foregoing conclusions, we hold that the trial court did not err in awarding defendant a portion of plaintiff\u2019s military retirement pay. Accordingly, the trial court order is affirmed.\nAffirmed.\nJudges CALABRIA and GEER concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Sims & Strout, by Hurman R. Sims, for plaintiff-appellant.",
      "Sullivan & Grace, P.A., by Nancy L. Grace, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "DANIEL BRENENSTUHL, Plaintiff v. KAREN E. BRENENSTUHL (MAGEE), Defendant\nNo. COA04-1007\n(Filed 5 April 2005)\nDivorce\u2014 incorporated separation agreement \u2014 military retirement pay\nThe trial court did not err by awarding defendant wife a portion of plaintiff husband\u2019s military retirement pay based on the parties\u2019 incorporated separation agreement subsequent to entry of divorce, because: (1) the incorporated provisions of the separation agreement is specifically entitled \u201cRetirement Benefits,\u201d and the provision states that issues of retirement will be addressed at a future date; (2) the trial court had the authority to enter its subsequent order awarding defendant a portion of plaintiff\u2019s military pay since the court had not previously addressed the issue of retirement included in the separation agreement: (3) the provision in the separation agreement is not so overly broad or vague as to prevent the court from awarding defendant a portion of plaintiff\u2019s retirement pay; and (4) the separation agreement offered no specific language referring to an alternative means of distribution, and the trial court correctly applied the provisions related to retirement benefits found in N.C.G.S. \u00a7 50-20.1(d).\nAppeal by plaintiff from order entered 18 May 2004 by Judge Leonard W. Thagard in Onslow County District Court. Heard in the Court of Appeals 10 March 2005.\nSims & Strout, by Hurman R. Sims, for plaintiff-appellant.\nSullivan & Grace, P.A., by Nancy L. Grace, for defendant-appellee."
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