{ "id": 6768758, "name": "SUZIE JANE BURAKOWSKI, Plaintiff v. STEVEN ALLEN BURAKOWSKI, Defendant", "name_abbreviation": "Burakowski v. Burakowski", "decision_date": "2014-05-06", "docket_number": "No. COA13-986", "first_page": "601", "last_page": "620", "citations": [ { "type": "official", "cite": "233 N.C. App. 601" } ], "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": "748 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2013, "pin_cites": [ { "page": "720", "parenthetical": "\"The law of the case doctrine provides that when a party fails to appeal that order, the decision below becomes the law of the case and cannot be challenged in subsequent proceedings in the same case.\" (citation, quotation marks, and brackets omitted)" } ], "opinion_index": 0 }, { "cite": "597 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985679 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0523-01" ] }, { "cite": "579 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "890" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185760 ], "year": 2003, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0035-01" ] }, { "cite": "487 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "159" }, { "page": "159" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 795", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713470 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "798" }, { "page": "798" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0795-01" ] } ], "analysis": { "cardinality": 863, "char_count": 41972, "ocr_confidence": 0.698, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1820523127024008 }, "sha256": "68ef6cf8ac91a634d03813b5c94d007502ca68fd9c395cf8bdec2d76ac583f00", "simhash": "1:8b42d6b6140fb1f1", "word_count": 6786 }, "last_updated": "2023-07-14T17:57:00.832613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR., Robert N. and DILLON concur." ], "parties": [ "SUZIE JANE BURAKOWSKI, Plaintiff v. STEVEN ALLEN BURAKOWSKI, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals order allowing plaintiff\u2019s motion for contempt, awarding plaintiff certain annuity payments, and denying defendant\u2019s motion for sanctions. For the following reasons, we reverse and remand in part.\nI. Background\nIn 2008, plaintiff and defendant were divorced in Kentucky by a decree of dissolution of marriage which incorporated a separation agreement. The separation agreement, entered on 8 October 2008, included a provision regarding the division of defendant\u2019s retirement benefits as follows:\nParties agree that wife is entitled to one half of the husband\u2019s retirement account, which specifically is TSP and FERS accounts, as of the date of the entrance of the final decree of dissolution in this case. Wife shall execute any orders as directed by the Court to effectuate said division including but not limited to any QDROs.\nThereafter, on 19 November 2008, the parties entered into an Amended Separation Agreement (\u201cAmended Agreement\u201d) which was also incorporated into the decree of dissolution of marriage. The Amended Agreement further addressed defendant\u2019s retirement benefits as follows:\nThe parties agree that wife is entitled to one half (14) of husband\u2019s Retirement Accounts, more specifically his TSP account and FERS account. His TSP account shall be divided, with wife to receive 14 the value thereof as of the date of the entrance of the Final Decree of Dissolution in this case. Wife shall execute any orders as directed by the Court to effectuate said division, including but not limited to any Qualified Domestic Relations Order (QDRO). Husband\u2019s FERS account shall be divided, with wife to receive 14 of the amount in said account as of the date of the entrance of the Final Decree in this case. Both parties understand that wife will not receive payment of this amount until husband retires. Wife shall execute any Orders necessary to effectuate division of the same. Wife shall also receive 14 of the supplemental annuity to be received by husband from the date of his retirement or when he reaches age 57, whichever shall come earlier[.]\n(Emphasis added.) Thus, the Amended Agreement provided additional details as to the portions of the defendant\u2019s retirement benefits that plaintiff would receive and how the distributions would be accomplished.\nIn 2010, a North Carolina trial court entered a consent order which domesticated the Kentucky modified decree of dissolution of marriage making it \u201cenforceable as a valid Order of the State of North Carolina, so the terms of the Amended Agreement became enforceable as a court order. Later in 2010, plaintiff filed a verified \u201cMOTION IN THE CAUSE AND FOR CONTEMPT\u201d (\u201c2010 Motion\u201d) seeking to hold defendant in contempt under the terms of the Amended Agreement regarding her health insurance benefits, which are not at issue in this appeal, and also seeking \u201cclarification\u201d of the provisions of the Amended Agreement as to defendant\u2019s retirement benefits. Plaintiff alleged:\n7. That the Amended Separation Agreement provided for the plaintiff to receive one half of the defendant\u2019s FERS retirement benefits, upon his retirement. A problem has arisen regarding the Office Of Personal Management\u2019s interpretation of the provision of the Amended Separation Agreement that divides defendant\u2019s FERS retirement annuity. The OPM has interpreted the wording of the Amended Separation Agreement contrary to the clear intent of the parties, because the term \u201cretirement account\u201d was used rather than the term \u201cretirement annuity.\u201d The intent of the parties was clearly for the plaintiff to receive one half of the monthly annuity payments that defendant is entitled to receive, pursuant to his FERS retirement benefit/annuity. However, because the Amended Separation Agreement did not us[e] the specific word \u201cannuity\u201d, OPM has construed the Amended Separation Agreement as only giving her a one half interest in the set contributions that were made to the FERS account after the date of the October 10, 2008 Decree, which was only for a one year period, as indicated in document attached hereto as \u201cExhibit 2\u201d.\n8. That the court should clarify the wording of the Amended Separation Agreement to conform with the clear intentions of the parties and should specify that the OPM shall divide and apportion the defendant\u2019s monthly FERS retirement annuity payment so that the plaintiff shall begin receiving one half of these monthly annuity payments. The court should also require that the defendant reimburse the plaintiff for the plaintiffs one half share of each monthly FERS annuity payment that she has not received since the date the defendant retired and began receiving his FERS annuity monthly payment.\n11. That the plaintiff has requested and demanded of the defendant that he comply with the health insurance provisions of the Amended Separation Agreement and has requested and demanded of the defendant that he cooperate in amending the prior Amended Separation Agreement to specify that plaintiff is entitled to receive one half of the defendant\u2019s monthly FERS retirement annuity. However, the defendant has failed and refused to abide or comply with these requests and demands, which has required the plaintiff to initiate this Motion to enforce the defendant\u2019s compliance with the health insurance provision and to clarify the FERS annuity provision, to conform with the clear intent of the parties.\nPlaintiff then specifically requested that the trial court \u201cclarif[y]\u201d the Amended Agreement to provide specifically that she would receive one half of the defendant\u2019s monthly \u201cFERS retirement annuity payment\u201d and that OPM be ordered to pay this directly to plaintiff:\n4. That the retirement provision of the Amended Separation Agreement be clarified to specify that the plaintiff is entitled to receive one half of the defendant\u2019s monthly FERS retirement annuity payment, and to order the OPM to begin directing one half of each monthly annuity payment to the plaintiff. Also, the defendant be ordered to reimburse the plaintiff for the plaintiff\u2019s one half share of each monthly FERS retirement annuity payment that the defendant has received since his retirement.\nIn other words, because the Amended Agreement referred specifically only to the defendant\u2019s \u201cFERS account\u201d and \u201csupplemental annuify[,]\u201d the OPM had taken the position that the Amended Agreement did not permit it to pay the basic annuity benefits to plaintiff. Plaintiff testified at the hearing on her 2010 Motion that defendant had already retired and one-half of his TSP or Thrift Savings Plan, had been paid to her in the lump sum of $119,030.00, and an additional $7,400.00 had been paid over the course of six months as her one-half interest from the FERS account. However, plaintiff was not being paid a one-half share of the basic annuity, so she requested the trial court to \u201cclarif[y]\u201d that the parties actually meant for the term \u201cFERS account\u201d to include the basic annuity so that the OPM would pay one-half of the basic annuity benefits to her. Plaintiff also requested that defendant be required to pay to her the arrearages of her one-half of the basic annuity payments that had accrued up to that time.\nIn 2011, the trial court entered an order (\u201c2011 Order\u201d) after a hearing on plaintiff\u2019s 2010 Motion and found:\n11. That the defendant currently receives a gross regular monthly FERS annuity of $2,327.00. He also receives an additional FERS supplemental annuity of $915.00 per month. The defendant is also gainfully employed at Fort Lee and testified that he earns $80,000.00 per year from his employment, and began his employment in June, 2010.\n22. That the plaintiff contends that the Amended Separation Agreement should be modified and clarified to require the defendant to pay her V2 of his FERS regular retirement benefits. However, the court deems that the Amended Separation Agreement is unambiguous in regards to the plaintiff\u2019s right concerning the defendant\u2019s retirement benefits and will not modify or supplement the provisions contained therein.\n23. That the specific wording of the Amended Separation Agreement, as agreed to and admitted by each party in open court, provides that the plaintiff is entitled to receive Vz of the defendant\u2019s monthly FERS supplemental annuity payments, less Vz of the taxes.\n24. That the defendant started receiving his monthly FERS supplemental annuity payments on March 1, 2010.\n25. That the defendant currently receives the sum of $915.00 per month as FERS supplemental annuity payments. The amount of taxes are deducted is $269.60 per month. Therefore, the plaintiffs net % share of the current monthly supplemental annuity payment is $322.70. For the 13 months that the defendant received this supplemental annuity payment up to the March 25, 2011 court date, the total net payment due to the plaintiff from the defendant, for her share of the supplemental annuity payments, is $4,195.10.\n26. That the total amount of the plaintiff\u2019s share of the defendant\u2019s monthly supplemental annuity payments, as of July 31, 2011, will be $5,485.90.\n27. That the defendant should be ordered to directly pay the plaintiff, each month, her 14 share of his supplemental annuity payment, less taxes, the current net monthly amount due plaintiff being $322.70, by the 5th day of each month, beginning August 5, 2011.\n28. That the defendant has the present financial ability to pay the plaintiff the reimbursement/arrearage that he owes her for her share of his supplemental annuity payments, dating back to March 1, 2010. The amount of the arrearage/reimbursement owed by the defendant to the plaintiff, through July 31, 2011, is $5,485.90. The defendant has the present financial ability to pay to the plaintiff, provided that he is allowed to pay this reimbursement/arrearage amount in 6 equal monthly installments, with the first installment being due and payable by September 5, 2011.\n(Emphasis added.)\nThe trial court concluded that plaintiff would receive one-half of the supplemental annuity payments, past and future:\n16. That the plaintiff\u2019s share of the defendant\u2019s monthly FERS supplemental annuity payments that he has received since March 1, 2010, through the March 25, 2011 court date, is $4,195.10. The total amount of plaintiff\u2019s share of the defendant\u2019s monthly supplemental annuity payments through July 31, 2011, will be $5,485.90.\n17. That the defendant has the present financial ability to reimburse the plaintiff for her l\u00e9 share of the supplemental annuity payments defendant has received since March 1,2010, provided that he is allowed to pay this reimbursement/arrearage total in 6 equal installments, payable monthly, with the first installment payment being due September 5, 2011.\n(Emphasis added.)\nThe trial court thus ordered payment of the supplemental annuity benefits, including arrearages as well as future payments:\n9. ... The total supplemental annuity reimbursement that the defendant owes the plaintiff, through July 31, 2011, is $5,485.90. The total arrearage/reimbursement that the defendant owes the plaintiff, through July 31, 2011, is $13,041.56. Defendant shall pay plaintiff the full sum of $13,041.56 in six monthly installments, beginning with a first monthly installment due September 5, 2011, in the amount of $2,173.59. The defendant shall make an equal payment of $2,173.59 to the plaintiff on October 5, 2011, November 5, 2011, December 5, 2011, and January 5, 2012. The defendant shall make a final arrearage installment payment of $2,173.61 to plaintiff on February 5, 2012.\n10. That willful violation of the provisions of this Order shall be punishable by the contempt of court sanctions of this court.\n(Emphasis added.) In sum, the 2011 Order did not \u201cclarif[y]\u201d the Amended Agreement as plaintiff requested nor did it order defendant to pay any basic annuity payments, but instead only ordered payments as to the \u201csupplemental annuity[.]\u201d (Emphasis added.) The record does not indicate that either party appealed from this order.\nIn 2012, plaintiff filed a verified \u201cMOTION FOR CONTEMPT\u201d (\u201c2012 Motion\u201d) which requested that defendant be held in contempt for failure to pay her one-half of his basic annuity payments under the Amended Agreement, alleging:\n6. That the defendant should be found to be in willful contempt of court for his willful violation of the provisions of the aforesaid Amended Separation Agreement, which has been incorporated into the Divorce Decree entered in this cause, in that:\nA. The Amended Separation Agreement provided for the plaintiff to receive one half of the defendant\u2019s FERS retirement account, upon his retirement.\nB. The defendant\u2019s FERS retirement account encompasses the retirement annuity that provides defendant with monthly annuity payments.\nC. The intent of the parties was clearly for the plaintiff to receive one half of the monthly annuity payments that defendant is entitled to receive, pursuant to his FERS retirement account.\nD. The defendant has willfully failed and refused to pay plaintiff one half of his monthly retirement annuity payment since his retirement, as required by the aforesaid Amended Separation Agreement, despite demand from the plaintiff.\nE. The only portion of the defendant\u2019s FERS retirement account that plaintiff has received is one half of the direct contributions that were made by the defendant into his FERS account after the date of the October 10, 2008 Decree, and prior to the retirement date of the defendant.\nF. The specific wording of the Amended Separation Agreement, that was incorporated into the October 10, 2008 Decree, provided for the plaintiff to receive .one half of the defendant\u2019s \u201cretirement account\u201d, not just one half of the direct contributions made between October 10,2008 and the date of the defendant\u2019s retirement. The said Amended Separation Agreement, as incorporated into the Decree, required the defendant to provide plaintiff with one half of his full \u201cretirement account\u201d upon retirement, which emcompasses and includes the monthly FERS retirement annuity payment received by the defendant.\nG. The purposes of the Amended Separation Agreement can still be accomplished by the court entering an Order finding the defendant to be in willful contempt of court and imposing such sanctions against the defendant as deemed appropriate.\nH. An appropriate sanction against the defendant for his willful violation of the provisions of the Amended Separation Agreement, due to his willful failure and refusal to provide the plaintiff with one half of his FERS retirement account since his date of retirement, would be for the court to specifically order the defendant to do the following:\n1. Order the defendant to reimburse the plaintiff for plaintiff\u2019s one half share of each monthly FERS annuity payment that he has received since the date the defendant retired and began receiving his FERS annuity monthly payment.\n2. Order the defendant to directly forward the plaintiff her one half share of each prospective monthly FERS annuity payment that he receives.\n3. Order the defendant to pay the plaintiff an award of reasonable attorney fees to reimburse her for her costs and attorney fees incurred in connection with the enforcement of the retirement account provisions of the aforesaid Amended Separation Agreement and Decree.\n7. That the Amended Separation Agreement had a \u201cdefault\u201d provision that required that in the event either party defaults in or breaches any of his or her respective obligations and duties as contained in the Agreement, the defaulting or breaching party shall be responsible for and pay the injured party, in addition to such damages as any court may award, all of his or her attorney fees, court costs and other related expenses incurred to enforce the provisions contained in the Amended Separation Agreement against the defaulting party.\n8. That the defendant has defaulted on his obligations pursuant to the Amended Separation Agreement by his willful failure to abide and comply with the retirement account provisions of said Agreement, by his fail-rue and refusal to separate and apportion the plaintiff\u2019s one half of his monthly FERS retirement annuity payment to plaintiff. Therefore, the defendant should be required to reimburse the plaintiff for all of her attorney fees, court costs and other related expenses connected with this proceeding.\n9. That the plaintiff has requested and demanded of the defendant that he comply with the retirement account provisions of the Amended Separation Agreement and has requested and demanded of the defendant that he provide her with her one half share of his monthly FERS retirement annuity payment. However, the defendant has failed and refused to abide or comply with these requests and demands, which has required plaintiff to initiate this Motion to enforce the defendant\u2019s compliance with the retirement account provisions and to secure plaintiffs receipt of her one half share of the defendant\u2019s monthly FERS retirement annuity payment, retroactive to the date of the defendant\u2019s retirement.\nPlaintiff requested that defendant be held in contempt \u201cfor his willful violation of the provisions of the aforesaid Amended Separation Agreement\u201d and that he be requiredin order to purge himself of contempt, to do the following:\nA. Reimburse the plaintiff for her one half share of each monthly FERS retirement annuity payment that the defendant has received since his date of retirement.\nB. The defendant be required to henceforth directly pay plaintiff her one half share of each monthly FERS retirement annuity payment that he receives.\nC. The defendant be required, in order to purge himself of contempt, to pay the plaintiff an award of reasonable attorney fees to defray her costs and attorney fees incurred in connection with this Motion, consistent with the \u201cdefault\u201d provision of the Amended Separation Agreement, as incorporated into the said Decree.\nThus, plaintiff again requested one half of defendant\u2019s basic annuity payment, based on the provisions of the Amended Agreement. Plaintiff\u2019s motion was not based upon the 2011 Order, nor did it mention this order in which the trial court had already denied this same substantive relief.\nDefendant responded to plaintiff\u2019s 2012 Motion with \u201cNOTICE AND MOTION FOR RULE 11 SANCTIONS\u201d arguing that\nPlaintiff\u2019s current Motion for Contempt is barred by collateral estoppel and/or Res Judicata, said matter having been subject to previous litigation . . . [in] 2011. The matters raised in Plaintiff\u2019s Motion are substantially identical to matters ruled upon by the ... [trial court\u2019s 2011 Order], Defendant avers that Plaintiff should be responsible for his attorneys fees in defending against her currently pending Motion.\nWHEREFORE, Defendant respectfully requests that this Court dismiss with prejudice Plaintiff\u2019s Motion and the Order to Show Cause set for... 2012.\nOn 25 March 2013, the trial court entered a \u201cCONTEMPT ORDER\u201d (\u201c2013 Order\u201d) finding defendant in willful contempt based on his failure to comply with the Amended Separation Agreement, for the following reasons:\nA. The Amended Separation Agreement provided for the plaintiff to receive one half of the defendant\u2019s FERS retirement accounts, upon his retirement.\nB. Based upon the testimony of the plaintiff and defendant at trial, it was clear understanding of each party that the FERS accounts included the defendant\u2019s basic annuity payments as well as the supplemental annuity payments.\nC. Based upon the Amended Separation Agreement and the understanding of each party, as testified to at trial, the plaintiff was to receive from the defendant one half of the monthly FERS basic annuity payments that the defendant received.\nD. Despite the provisions of the Amended Separation Agreement, and the understanding of the defendant that the plaintiff was to receive one half of his monthly FERS basic annuity,' he has failed and refused to pay plaintiff one half of his monthly FERS basic annuity payment since his retirement, despite demand from the plaintiff that he do so.\nE. The plaintiff has received one half of the direct contributions that were made by the defendant into his FERS accounts after the date of the October 10, 2008 Decree, and prior to the retirement date of the defendant, and one half of the FERS supplemental annuity, per prior Order of this court entered March 25, 2011[.]\nF. The specific wording of the Amended Separation Agreement, that was incorporated into the October 10, 2008 Decree, provided for the plaintiff to receive one half of the defendant\u2019s \u201cretirement accounts\u201d, not just one half of the direct contributions made between October 10, 2008 and the date of the defendant\u2019s retirement. The said Amended Separation Agreement, as incorporated into the Decree, required the defendant to provide plaintiff with one half of his full \u201cretirement accounts\u201d upon retirement, which encompasses and includes the monthly FERS basic annuity payments received by the defendant.\nG. The defendant began receiving his monthly FERS basic annuity payments on March 1, 2010 and has continued to receive these monthly payments. Plaintiff was entitled to receive one half of the defendant\u2019s monthly FERS basic annuity payments from the March 1, 2010 date that the defendant began receiving these payments; however, the defendant has not provided the plaintiff with any portion of the monthly FERS basic annuity payments that he has received since March 1, 2010.\nH. The defendant has received a gross monthly basic FERS annuity payment of $2,327.00. The plaintiff is entitled to one half of each monthly payment, related back to March 1, 2010, when the defendant began receiving his monthly FERS basic annuity payments.\nI. The defendant willfully failed and refused to abide by the terms of the Amended Separation Agreement by failing and refusing to pay the plaintiff her one half portion of his monthly FERS basic annuity payments that he has received since March 1, 2010.\nJ. The plaintiff has requested and demanded of the defendant that he comply with the retirement account provision of the Amended Separation Agreement and has requested and demanded of the defendant that he provide her with her one half share of his monthly FERS basic retirement annuity payments. However, despite these requests, and the defendant\u2019s knowledge that the monthly FERS basic annuity payments were included in, and a part of, his FERS accounts that the plaintiff was entitled to receive one half of, he failed and refused to pay her any portion of the monthly basic annuity payments since March 1, 2010, thereby requiring the plaintiff to initiate this motion to enforce the defendant\u2019s compliance.\nK. The purpose of the Amended Separation Agreement can still be accomplished by the court entering an Order finding the defendant to be in willful contempt of court and imposing the sanctions against the defendant as set forth in the Decree of this Order.\n9. That the defendant has the current financial ability to pay the plaintiff one half of his monthly FERS basic annuity payments and has the present financial ability to reimburse the plaintiff for her share of the past due basic annuity payments that he failed and refused to pay her since March 1, 2010, based upon the repayment schedule as set forth in the Decree of this Order.\n10. That the defendant receives a gross monthly basic FERS annuity payment of $2,327.00. He also receives an additional monthly FERS supplemental annuity payment of $915.00, but of this amount he pays $322.70 per month to the plaintiff, pursuant to the prior Order of this court. The defendant is also gainfully employed and earns an annual income of approximately $80,000.00 per year.\n11. That an appropriate sanction against the defendant for his willful violation of the provisions of the Amended Separation Agreement, due to his willful failure and refusal to pay the plaintiff her one half share of his monthly FERS basic annuity since the date of his retirement, would be for the defendant to directly pay the plaintiff for her one half share of each prospective monthly FERS basic annuity payment that he receives, within five days of the date that he receives each monthly payment.\n12. That an additional appropriate sanction against the defendant for his willful violation of the provisions of the Amended Separation Agreement would be for the court to order the defendant to reimburse the plaintiff for her one half share of each monthly FERS basic annuity payment that he has received since the defendant began receiving his payments on March 1, 2010, pursuant to the repayment schedule as set forth in the Decree of this Order.\n13. That the defendant has received his $2,327.00 per month FERS basic annuity payment since March 1, 2010. The plaintiffs one half share of each of these monthly payments is $1,163.50. As of April 30, 2013, the defendant will owe the plaintiff an arrearage of $45,376.50 for the plaintiffs one half share of the defendant\u2019s monthly FERS basic annuity payments since March 1, 2010.\n14. That as a sanction against the defendant for his willful violation of the provisions of the Amended Separation Agreement, he should be required to directly pay the plaintiff the sum of $500.00 per month, beginning May 1, 2013, to be applied toward the defendant\u2019s arrear-age, in addition to the $1,163.50 that the defendant is to pay to the plaintiff each month for her one half share of the ongoing monthly FERS basic annuity payments.\n15. That the defendant has the present financial ability to pay the plaintiff the sum of $500.00 per month to be applied toward his aforesaid arrearage owed to the plaintiff, and has the present financial ability to pay the plaintiff the sum of $1,163.50 per month, as plaintiff\u2019s one half share of his ongoing monthly FERS basic annuity payments.\n16. That the plaintiff has waived and abandoned her claim against the defendant for attorney fees in this proceeding.\n17. That the defendant\u2019s Motion For Sanctions should be denied in that the prior Order of this court did not serve as res judicata for the issues determined in this proceeding. The issue of whether or not the plaintiff is entitled to receive one half of the defendant\u2019s monthly FERS basic annuity was not fully litigated and decided at the prior hearing in this cause on March 25, 2011.\nThe trial court concluded:\n3. That the defendant is in willful contempt of court for his willful violation of the provisions of the aforesaid Amended Separation Agreement, which has been incorporated into the Divorce Decree entered in this cause, due to his willful failure to pay the plaintiff her one half share of his monthly FERS basic annuity payments that he has received since March 1, 2010.\n4. That the purposes of the Amended Separation Agreement can still be accomplished by the court entering an Order finding the litigated or decided as a result of the court\u2019s prior ruling in the hearing in this matter on March 25, 2011.\nThe trial court ordered:\n1. That the defendant is in willful contempt of court for his willful noncompliance with the provisions of the Amended Separation Agreement, due to his willful failure to pay the plaintiff her one half share of his monthly FERS basic annuity payments that he has received since March 1, 2010.\n2. That as a sanction against the defendant, in order for him to purge himself of contempt, he shall pay directly to the plaintiff one half of his gross monthly FERS basic annuity payments within five days of the date that he receives each payment. The defendant\u2019s initial payment to the plaintiff shall be paid on or before five days from the date he receives his FERS basic annuity payment for May, 2013, and he shall continue to pay the plaintiff her one half share of each basic annuity payment within five days of the date he receives each monthly payment thereafter.\n3. That the current monthly amount that the defendant shall pay the plaintiff, as the plaintiff\u2019s one half share of defendant\u2019s monthly FERS basic annuity, shall be $1,163.50. However, said monthly payment shall increase or decrease accordingly due to any increases or decreases in the monthly FERS basic annuity payments that the defendant receives.\n4. That as a further sanction against the defendant, in order for him to purge himself of contempt, he shall pay the plaintiff the sum of $45,376.50, which represents the plaintiffs one half share of the defendant\u2019s monthly FERS basic annuity payments that he has received since March 1, 2010 through April 30, 2013. The defendant shall pay this arrearage directly to the plaintiff at the rate of $500.00 per month, until the full arrearage has been paid. The initial $500.00 monthly arrearage payment shall be due and payable from the defendant to the plaintiff on or before May 1, 2013 with an equal $500.00 arrear-age payment being due on or before the first day of each month thereafter, until the full $45,376.50 arrearage has been paid.\n5. That the plaintiffs claim against the defendant for attorney fees in this proceeding has been waived and abandoned.\n6. That the defendant\u2019s Motion For Sanctions against the plaintiff is denied.\n7. That willful violation of the provisions of this Order shall be punishable by the contempt of court sanctions of this court.\n8. That this cause is retained by the court for such other and further Orders as may be deemed just and proper.\n(Emphasis added.) Thus, based upon the Amended Agreement, the trial court ordered defendant be held in contempt for failing to pay plaintiff one-half of payments received from the basic annuity since his retirement, ordered defendant to begin paying plaintiff one-half of his basic annuity payments, ordered defendant to pay arrearages based on his previous failure to pay plaintiff the basic annuity payment, and denied defendant\u2019s motion for sanctions. Defendant appeals the 2013 Order.\nII. 2013 Order\nBoth plaintiff and defendant have inaccurately labeled various requests and claims both before the trial court and this Court. For example, plaintiff requested that the trial court \u201cclarify the wording of the\u201d Amended Agreement, although her motion would more properly be called a request for reformation, see Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C. App. 795, 798, 487 S.E.2d 157, 159 (1997) (\u201cReformation is a well-established equitable remedy used to reframe written instruments where, through mutual mistake or the unilateral mistake of one party induced by the fraud of the other, the written instrument fails to embody the parties\u2019 actual, original agreement. . . . Negligence on the part of one party which induces the mistake does not preclude a finding of mutual mistake. In other words, the fact that the mistake arises because the party who is seeking the reformation supplied the incorrect information does not make the mistake unilateral.\u201d (citations, quotation marks, and brackets omitted)), and defendant sought a form of relief that is not even available when he requested a dismissal of a motion, rather than a denial of said motion. See generally N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (2011) (regarding the dismissal of claims, not other motions). Yet it is clear that both parties knew and understood the substantive requests or challenges the other was making and both parties have addressed these issues, so we will simply address the issues on appeal in substance, rather than attempting to use the titles which the parties proposed in their arguments both before the trial court and this Court. See generally In re Testamentary Tr. of Charnock, 158 N.C. App. 35, 39, 579 S.E.2d 887, 890 (2003) (\u201cIt is the substance of the application, or petition, and the relief which is sought thereunder that determines its true nature, not the title appended thereto by the petitioner. It has long been the law that the nature of the action is not determined by what either party calls it, but by the issues arising on the pleadings and by the relief sought. We will, therefore, undertake our own inquiry into the ... issues arising on the pleadings and the relief sought in appellants\u2019 petition.\u201d (citation, quotation marks, and brackets omitted)), aff\u2019d, 358 N.C. 523, 597 S.E.2d 706 (2004).\nIn substance, defendant contends that the trial court erred in ordering him to pay plaintiff one-half of his basic annuity because plaintiff was barred from raising that issue in her 2012 Motion since the trial court had already denied this same relief in the 2011 Order; in addition, the trial court also erred in finding defendant to be in contempt for failing to do something he had never been ordered to do and in denying defendant\u2019s motion for sanctions based on the issue of the basic annuity. Plaintiff contends that her 2010 and 2012 Motions are substantively different, mainly because the 2010 Motion was a motion to \u201cclarif [y]\u201d wording of the Amended Agreement as to the retirement benefits to reflect the \u201cthe clear intentions of the parties\u201d for plaintiff to receive one-half of defendant\u2019s basic annuity payments, while, in contrast, the 2012 Motion was a motion for contempt for defendant\u2019s failure to pay plaintiff her one-half of the basic annuity. We agree with defendant.\nContrary to the trial court\u2019s finding of fact that \u201c[t]he issue of whether or not the plaintiff is entitled to' receive one half of the defendant\u2019s monthly FERS basic annuity was not fully litigated and decided at the prior hearing in this cause on March 25, 2011[,]\u201d we find, based upon consideration of the motions, the transcript from the 2011 hearing, and the 2011 Order, that the issue was quite fully litigated and decided. In plaintiff\u2019s 2010 Motion, she very specifically requested that the trial court order defendant to pay of one-half of the basic annuity payments, including both reimbursement of past sums due and continued payment in the future. Plaintiff contends she was seeking to \u201cclarif[y]\u201d the Amended Agreement, but legally, what she sought would more properly be termed reformation of the Amended Agreement. See Metropolitan Property and Cas. Ins. Co., 126 N.C. App. at 798, 487 S.E.2d at 159.\nBut in its 2011 Order, the trial court denied reformation of the Amended Agreement, although it did not use this terminology. The trial court found that the Amended Agreement was \u201cunambiguous\u201d and that it would not \u201cmodify or supplement\u201d the Amended Agreement, and the trial court quite specifically awarded plaintiff payment of one-half of the supplemental annuity only and not the basic annuity. We know that this issue was litigated and that the trial court did not overlook the basic annuity or confuse it with the supplemental annuity, because the trial court also found that defendant was already receiving basic annuity payments and plaintiff had requested that she receive half of both the basic and supplemental annuities. Yet in plaintiff\u2019s 2012 Motion, she again requested that defendant be required to pay her one-half of the basic annuity payments, past and future.\nWhile the 2011 Order did not explicitly state that it was denying plaintiff\u2019s request for the basic annuity, in that order the trial court made numerous and detailed findings regarding both the basic annuity and the supplemental annuity but ultimately awarded plaintiff only a portion of the supplemental annuity. In the 2011 Order, the trial court found that while \u201cplaintiff contend[ed] that the Amended Separation Agreement should be modified and clarified to required the defendant to pay her \u00a52 of his\u201d basic annuity... \u201cthe court deems that the Amended Separation Agreement is unambiguous in regards to the plaintiff\u2019s right concerning the defendant\u2019s retirement benefits and will not modify or supplemental the provisions contained therein.\u201d The trial court then found that plaintiff was \u201centitled to receive \u00a52 of the defendant\u2019s\u201d supplemental annuity. The trial court\u2019s conclusions of law and decree are supported by the findings of fact as the trial court did not award plaintiff payment for one-half of the basic annuity, as it stated it would \u201cnot modify or supplement\u201d the Amended Agreement to grant plaintiff these payments as she requested, but the trial court did order that plaintiff should receive one-half of the supplemental annuity which was specifically provided for in the Amended Agreement. The 2011 Order was not appealed by either party and thus is the law of the case. See Wellons v. White,__N.C. App._,_, 748 S.E.2d 709, 720 (2013) (\u201cThe law of the case doctrine provides that when a party fails to appeal that order, the decision below becomes the law of the case and cannot be challenged in subsequent proceedings in the same case.\u201d (citation, quotation marks, and brackets omitted)). The question of plaintiff\u2019s entitlement to one-half of the basic annuity payments was decided in 2011 and the 2011 Order was not appealed. As such, plaintiff\u2019s 2012 Motion which again requested payment for one-half of the basic annuity had no legal basis in either the Amended Agreement or the 2011 Order, and the trial court should not have allowed such a request. See id.\nWe also agree with defendant that he cannot be held in contempt for something he was never ordered to do. In the 2012 Order, all of the findings of fact and conclusions of law regarding why the trial court found defendant to be in contempt were regarding his failure to pay the basic annuity payment, not the supplemental annuity payment. But because defendant was under no obligation to pay plaintiff one-half of the basic annuity payments, under either the Amended Agreement, as decided in the 2011 Order, or under the 2011 Order itself, which ordered only payment of the supplemental annuity, he could not be held in contempt on this issue. As failure to pay one half of the basic annuity payment was the only basis upon which plaintiff sought for defendant to be held in contempt, and that basis is improper, the trial court should not have found defendant to be in contempt.\nLastly, because the trial court ultimately determined that plaintiff had not erred in bringing the basic annuity payment issue before the court again, it denied defendant\u2019s request to sanction plaintiff. But as noted above, this was error on the part of the trial court. As such, on remand the trial court should reconsider defendant\u2019s motion for sanctions in light of this opinion, although we express no opinion on whether the trial court should or should not sanction plaintiff.\nIII. Conclusion\nIn conclusion, we reverse the trial court\u2019s determination that plaintiff is entitled to receive payment from defendant\u2019s basic annuity, we reverse the trial court\u2019s determination that defendant was in contempt, and we reverse and remand the trial courts determination denying defendant\u2019s motion for sanctions.\nREVERSED and REMANDED in part.\nJudges HUNTER, JR., Robert N. and DILLON concur.\n. The original agreement is not in our record but this provision was read out loud at a hearing by defendant\u2019s attorney and plaintiff testified that this was what the separation agreement stated. There is no dispute about this provision, which was later amended.\n. Both parties state that plaintiff\u2019s motion was made in 2011; however, the file stamp is illegible and the date written in by plaintiff\u2019s attorney indicates the motion was made in 2010. As such, we will refer to this motion as the 2010 Motion noting that whether it was filed in 2010 or 2011 is irrelevant to the issues on appeal. There is no doubt that it preceded the motion and order at issue here.\n. The parties\u2019 use of informal terminology to identity the TSP retirement account, FERS retirement account, and the two FERS annuities, in the Amended Agreement, before the trial court, and in their briefs before this Court has made it challenging to determine at times exac\u00fcy which asset the parties are referring to, but ultimately the accounts and annuities as identified in this opinion are consistent with those found by the trial court, and these particular findings are not challenged.\n. In denying defendant\u2019s motion for sanctions the trial court also found that \u201c[t]he issue of whether or not the plaintiff is entitled to receive one half of the defendant\u2019s monthly FERS basic annuity was not fully litigated and decided at the prior hearing in this cause on March 25, 2011.\u201d\n. As the 2011 Order was not appealed, we express no opinion as to whether the trial court could have or should have granted reformation of the Amended Agreement in 2011.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Mitchell S. McLean, for plaintiff-appellee.", "DavisLaw Office, by Ma'ry Elizabeth Davis, for defendant-appellant." ], "corrections": "", "head_matter": "SUZIE JANE BURAKOWSKI, Plaintiff v. STEVEN ALLEN BURAKOWSKI, Defendant\nNo. COA13-986\nFiled 6 May 2014\nReformation of Instruments \u2014 separation agreement \u2014 interpretation of terms \u2014 basic annuity \u2014 issue fully litigated and decided previously \u2014 law of the case\nThe trial court erred in a case involving the interpretation of terms of an amended separation agreement by ordering defendant to pay plaintiff one-half of his monthly basic retirement annuity because plaintiff was barred from raising this issue in her 2012 motion for contempt. The issue of whether plaintiff was entitled to receive one half of the defendant\u2019s monthly basic annuity was fully litigated and decided at a prior hearing and the trial court had already denied this same relief in its order. That order was not appealed by either party and thus was the law of the case. Furthermore, the trial court also erred in finding defendant in contempt for failing to pay plaintiff one-half of his monthly basic retirement annuity because he had never been ordered to do so. The matter was remanded to the trial court for consideration of defendant\u2019s motion for sanctions based on the issue of the basic annuity in light of the Court of Appeals\u2019 opinion.\nAppeal by defendant from contempt order entered 25 March 2013 by Judge Eula E. Reid in District Court, Gates County. Heard in the Court of Appeals 9 January 2014.\nMitchell S. McLean, for plaintiff-appellee.\nDavisLaw Office, by Ma'ry Elizabeth Davis, for defendant-appellant." }, "file_name": "0601-01", "first_page_order": 611, "last_page_order": 630 }