{ "id": 4348511, "name": "WILLIAM C. PORTER, Plaintiff v. NELL B. PORTER, Defendant", "name_abbreviation": "Porter v. Porter", "decision_date": "2011-12-20", "docket_number": "No. COA11-899", "first_page": "629", "last_page": "634", "citations": [ { "type": "official", "cite": "217 N.C. App. 629" } ], "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": "654 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640081 ], "pin_cites": [ { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0798-01" ] }, { "cite": "154 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "73" } ], "opinion_index": 0 }, { "cite": "270 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566989 ], "year": 1967, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0253-01" ] }, { "cite": "298 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "342" }, { "page": "342" } ], "opinion_index": 0 }, { "cite": "307 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562460 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "386" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0381-01" ] }, { "cite": "548 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "567", "parenthetical": "quoting Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983)" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435921 ], "year": 2001, "pin_cites": [ { "page": "599", "parenthetical": "quoting Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0595-01" ] }, { "cite": "666 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149324 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0503-01" ] }, { "cite": "188 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155902 ], "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0026-01" ] }, { "cite": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "232" }, { "page": "232", "parenthetical": "\"Our statutes . . . contain a mechanism whereby the parties to a marriage may forego equitable distribution and decide themselves how their marital estate will be divided upon divorce.\"" }, { "page": "232" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "289" }, { "page": "290" }, { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] } ], "analysis": { "cardinality": 519, "char_count": 10952, "ocr_confidence": 0.739, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.33990862015507467 }, "sha256": "66b244f040cf9b489e22b0fc3d3068deb5e2af327bc589b03a0763a56b422aef", "simhash": "1:0b8fcd86529f92db", "word_count": 1737 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "WILLIAM C. PORTER, Plaintiff v. NELL B. PORTER, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPlaintiff William C. Porter (\u201chusband\u201d) appeals from the trial court\u2019s 17 February 2011 equitable distribution order. We vacate the order and remand for additional proceedings consistent with this opinion.\nHusband and defendant Nell B. Porter (\u201cwife\u201d) were married on 28 April 1968; no children were born of the marriage. On 29 March 1988, the parties separated and signed a Separation Agreement and Property Settlement (\u201cthe Agreement\u201d). Sometime after this separation, the parties reconciled and resumed their marital relationship until they separated again on 15 June 2005.\nHusband filed an action for absolute divorce from wife. Wife counterclaimed, seeking an unequal equitable distribution of the marital and divisible assets in her favor and seeking attorney\u2019s fees. Husband\u2019s reply to wife\u2019s counterclaims alleged that the Agreement is \u201ca complete bar to [wife\u2019s] claim to any of [husband\u2019s] property, both real and personal, and [is] a complete bar to [wife\u2019s] claim for equitable distribution.\u201d On 7 March 2007, the court granted husband\u2019s claim for absolute divorce from wife, and further ordered that the 1988 Agreement \u201cis incorporated into this divorce judgment and is made a part hereof, fully enforceable as provided by law.\u201d The court also decreed that the \u201cpending claims for equitable distribution are held open for disposition by the [c]ourt at a later date.\u201d At a later hearing on wife\u2019s counterclaim for equitable distribution, after considering the parties\u2019 sworn testimony, stipulations, and the record before it, the trial court distributed assets valued at $769,100.00 to husband, and distributed assets valued at $706,207.33 to wife, and ordered that the parties share the costs of the action equally. Husband appealed.\nHusband\u2019s only contention on appeal is that the trial court erred by considering wife\u2019s counterclaim for equitable distribution because such a claim was barred by the terms of the Agreement. We must agree.\n\u201cThe [Equitable Distribution Act] provides for a judicial determination of the distribution of the property accumulated during the marriage, a distribution reflecting the contribution of each party to the family, whether that contribution be in the form of wages brought in or domestic services provided.\u201d Hagler v. Hagler, 319 N.C. 287, 289, 354 S.E.2d 228, 232 (1987). However, \u201c[u]nder [N.C.G.S. \u00a7 50 20(d)], [b]efore, during or after marriage[,] the parties may by written agreement . . . provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.\u201d McIntyre v. McIntyre, 188 N.C. App. 26, 30, 654 S.E.2d 798, 801 (third alteration and omission in original) (internal quotation marks omitted), aff\u2019d per curiam, 362 N.C. 503, 666 S.E.2d 749 (2008); see also Hagler, 319 N.C. at 290, 354 S.E.2d at 232 (\u201cOur statutes . . . contain a mechanism whereby the parties to a marriage may forego equitable distribution and decide themselves how their marital estate will be divided upon divorce.\u201d). \u201cThese agreements are favored in this [S]tate, as they serve the salutary purpose of enabling marital partners to come to a mutually acceptable settlement of their financial affairs.\u201d Hagler, 319 N.C. at 290, 354 S.E.2d at 232.\nMoreover, \u201c \u2018[w]henever the parties bring [a] separation agreement[] before the court for the court\u2019s approval, it will no longer be treated as a contract between the parties.\u2019 \u201d Jones v. Jones, 144 N.C. App. 595, 599, 548 S.E.2d 565, 567 (2001) (quoting Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983)). Instead, \u201c \u2018[a]ll separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments.\u2019 \u201d Id. (quoting Walters, 307 N.C. at 386, 298 S.E.2d at 342). Thus, \u201cwhere the court incorporates the terms of a separation agreement into its judgment, the agreement is superseded by the court\u2019s order.\u201d Id. at 598, 548 S.E.2d at 567 (citing Mitchell v. Mitchell, 270 N.C. 253, 256, 154 S.E.2d 71, 73 (1967)).\nIn the present case, the parties separated and entered into the Agreement on 29 March 1988, which provided, in relevant part:\n6. Husband hereby relinquishes and releases all his right, title and interest in and to all the personal property or estate of the Wife; he does further renounce his right to administer upon her estate in case of her death intestate and does hereby release, renounce and relinquish his right to become a distributee in the estate of said Wife. Husband does hereby further release and relinquish all his right and interest in and to any and all real or personal property owned by Wife or that she may hereafter own.\nWithout limitation of the foregoing, Husband hereby specifically discharges, releases, relinquishes and surrenders any and all claims, demands, and rights of inheritance, descent, distribution, curtesy, and Statutory Share in or to all real and personal property of Wife, whether now owned or hereafter acquired by her, and all rights and claims growing out of the marital relationship or otherwise, including any right of election to take against the will of Wife.\n7. Wife hereby relinquishes and releases all her right, title and interest in and to all the personal property or estate of the Husband; she does further renounce her right to administer upon his estate in case of his death intestate and does hereby release, renounce and relinquish her right to become a distributee in the estate of said Husband. Wife does hereby further release and relinquish all her right and interest in and to any and all real or personal property owned by Husband or that he may hereafter own.\nWithout limitation of the foregoing, Wife hereby specifically discharges, releases and surrenders any and all claims, demands and rights of inheritance, descent, distribution, dower, and Statutory Share in and to all real and personal property of Husband, whether now owned or hereafter acquired by him, and all rights and claims growing out of the marital relationship or otherwise, including any right of election to take against the will of Husband.\n8. It is stipulated and agreed between the parties that should either of the parties file for and obtain a divorce in any lawful Court of the United States that both parties consent for this Separation Agreement and Property Settlement to be incorporated into the Divorce Judgment with the same force and effect as if the Separation Agreement and Property Settlement had been entered as a Judgment of the Court, either prior to, simultaneous with, or subsequent to the obtaining of the divorce.\n10. Each of the parties hereto acknowledges that this Separation Agreement and Property Settlement has been entered into of his or her own volition, with full knowledge of the facts, and full information as to the legal rights of equitable distribution and distributive award contained in North Carolina General Statute Section 50 20, and that the parties hereto deem this Agreement to be a reasonable, equitable, and fair distribution of the marital property and any property not specifically provided for under this Agreement shall be deemed to be separate property to be solely owned by the party holding title to the same.\n13. In the event of the reconciliation and resumption of the marital relationship between the parties, the provisions of this agreement for settlement of property rights shall nevertheless continue in full force and effect without abatement of any term or provision thereof, except as otherwise provided by written agreement duly executed by each of the parties after the date of reconciliation.\nThus, according to the express terms of the Agreement, and with \u201cfull information as to the legal rights of equitable distribution and distributive award contained in North Carolina General Statute Section 50 20,\u201d husband and wife agreed that each would relinquish \u201cany and all claims\u201d to \u201cany and all real or personal property owned by [the other party] or that [said party] may hereafter own.\u201d In other words, the parties exercised the \u201cbroad contractual freedom\u201d afforded them under North Carolina law by entering into their 1988 Agreement and foregoing their right to seek equitable distribution of the marital estate. See 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 14.50c, at 14 145 (5th ed. 2002) [hereinafter Lee\u2019s Family Law]. Additionally, the parties specifically contemplated and agreed that, were they to reconcile and resume the marital relationship after entering into the Agreement in 1988, the provisions of the Agreement regarding \u201csettlement of property rights shall . . . continue in full force and effect without abatement of any term or provision thereof.\u201d Thus, the Agreement \u201cmakes the parties\u2019 intent clear\u201d that the provisions regarding ownership of property acquired after husband and wife entered into the 1988 Agreement were to remain unaffected by any later reconciliation and resumption of the marital relationship. See Lee\u2019s Family Law \u00a7 14.50c, at 14 146. Accordingly, we conclude that the trial court erred by ordering equitable distribution of the property in contravention of the express terms of the now-court-ordered Agreement. Therefore, we vacate the trial court\u2019s order for equitable distribution and remand with instructions to distribute the property in accordance with the terms of the parties\u2019 Agreement, which provided that \u201cany property not specifically provided for under this Agreement shall be deemed to be separate property to be solely owned by the party holding title to the same.\u201d Our decision renders it unnecessary to consider the parties\u2019 remaining arguments.\nVacated and remanded.\nJudges ELMORE and STEPHENS concur.\n. The trial court found that the assets awarded to wife were valued at $706,207.33 as of the date of separation, and valued at $700,957.00 as of the date of trial.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Gailor, Wallis & Hunt, P.L.L.G., by Stephanie T. Jenkins, Stephanie J. Gibbs, and Carrie J. Buell, for plaintiff-appellant.", "Wright, Worley, Pope, Ekster & Moss, P.L.L.C., by Paul J. Ekster and Rick W. Scott, and Stiller and Disbrow, by Jason Disbrow, for defendant-appellee." ], "corrections": "", "head_matter": "WILLIAM C. PORTER, Plaintiff v. NELL B. PORTER, Defendant\nNo. COA11-899\n(Filed 20 December 2011)\nDivorce \u2014 equitable distribution \u2014 separation agreement\u2014 continuing effect\nThe trial court erred by ordering equitable distribution in contravention of the express terms of a Separation Agreement entered into in 1988 as part of an earlier separation. The parties specifically agreed that the agreement provisions regarding settlement of property rights would continue in full force and effect should the parties reconcile and resume the marital relationship.\nAppeal by plaintiff from order entered 17 February 2011 by Judge Napoleon B. Barefoot, Jr. in Brunswick County District Court. Heard in the Court of Appeals 28 November 2011.\nGailor, Wallis & Hunt, P.L.L.G., by Stephanie T. Jenkins, Stephanie J. Gibbs, and Carrie J. Buell, for plaintiff-appellant.\nWright, Worley, Pope, Ekster & Moss, P.L.L.C., by Paul J. Ekster and Rick W. Scott, and Stiller and Disbrow, by Jason Disbrow, for defendant-appellee." }, "file_name": "0629-01", "first_page_order": 639, "last_page_order": 644 }