{ "id": 8566989, "name": "GEORGE CREE MITCHELL v. GERALDINE EDWARDS MITCHELL", "name_abbreviation": "Mitchell v. Mitchell", "decision_date": "1967-05-03", "docket_number": "", "first_page": "253", "last_page": "258", "citations": [ { "type": "official", "cite": "270 N.C. 253" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "71 A.L.R. 723", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1966, "pin_cites": [ { "page": "730-734" } ], "opinion_index": 0 }, { "cite": "127 A.L.R. 741", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1966, "pin_cites": [ { "page": "743-744" } ], "opinion_index": 0 }, { "cite": "93 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273960 ], "opinion_index": 0, "case_paths": [ "/nc/93/0418-01" ] }, { "cite": "253 P. 2d 1030", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "153 S.E. 879", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 Va. 511", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2413182 ], "opinion_index": 0, "case_paths": [ "/va/154/0511-01" ] }, { "cite": "198 N.E. 575", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "226 N.W. 701", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "178 Minn. 75", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 244510 ], "opinion_index": 0, "case_paths": [ "/minn/178/0075-01" ] }, { "cite": "100 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626222 ], "opinion_index": 0, "case_paths": [ "/nc/247/0223-01" ] }, { "cite": "196 S.E. 819", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629114 ], "opinion_index": 0, "case_paths": [ "/nc/213/0537-01" ] }, { "cite": "22 S.E. 2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629360 ], "opinion_index": 0, "case_paths": [ "/nc/222/0181-01" ] }, { "cite": "121 S.E. 2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570721 ], "opinion_index": 0, "case_paths": [ "/nc/255/0507-01" ] }, { "cite": "136 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565461 ], "opinion_index": 0, "case_paths": [ "/nc/262/0067-01" ] }, { "cite": "31 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609655 ], "opinion_index": 0, "case_paths": [ "/nc/224/0556-01" ] }, { "cite": "37 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614119 ], "opinion_index": 0, "case_paths": [ "/nc/226/0129-01" ] }, { "cite": "95 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601922 ], "opinion_index": 0, "case_paths": [ "/nc/245/0001-01" ] } ], "analysis": { "cardinality": 608, "char_count": 12272, "ocr_confidence": 0.54, "pagerank": { "raw": 8.367024756858478e-07, "percentile": 0.9756806284845179 }, "sha256": "b9f1a5b2457bf59a4bf5e2cd65df2d93517796f7d3deefb1e7bf1a29500f12aa", "simhash": "1:85a1d4677e4c3438", "word_count": 2092 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LAKE, J., took no part. in the consideration or decision of this case." ], "parties": [ "GEORGE CREE MITCHELL v. GERALDINE EDWARDS MITCHELL." ], "opinions": [ { "text": "Shaep, J.\nA contract between husband and wife whereby he agrees to pay specified sums for her support may not be enforced by contempt proceedings even though the agreement has the sanction and approval of the court. Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118; Stanley v. Stanley, 226 N.C. 129, 37 S.E. 2d 118; Brown v. Brown, 224 N.C. 556, 31 S.E. 2d 529. When, however, a court having jurisdiction of the parties and the cause of action adjudges and orders the husband to make specified payments to his wife for her support, his wilful failure to comply with the court\u2019s judgment will subject him to attachment for contempt notwithstanding the judgment was based upon the parties\u2019 agreement and entered by consent. Bunn v. Bunn, 262 N.C. 67, 136 S.E. 2d 240; Stancil v. Stancil, 255 N.C. 507, 121 S.E. 2d 882; Edmundson v. Edmundson, 222 N.C. 181, 22 S.E. 2d 576; Davis v. Davis, 213 N.C. 537, 196 S.E. 819. See Smith v. Smith, 247 N.C. 223, 100 S.E. 2d 370. This is true, \u201cnot because the parties have agreed to it, but because the judgment requires the payment.\" Sessions v. Sessions, 178 Minn. 75, 226 N.W. 701. When the parties\u2019 agreement with reference to the wife\u2019s support is incorporated in the judgment, their contract is superseded by the court\u2019s decree. The obligations imposed are those of the judgment, which is enforceable as such. Adkins v. Staker, 130 Ohio State 198, 198 N.E. 575; accord, Gloth v. Gloth, 154 Va. 511, 153 S.E. 879. In such a case the wife has the option of enforcing the judgment by a rule of contempt or by execution, or both.\nPlaintiff argues, however, that the court\u2019s judgment that he pay defendant $150.00 a month for ten years, or a total of $18,000.00 if she fails to remarry, is not an award of alimony but merely a contract between the parties to which the court gave its approval. The answer to this argument is that the judge went further than merely putting his stamp of approval on the parties\u2019 contract. He could have manifested approval just by making the certificate required by G.S. 52-6 and G.S. 47-39. Instead, he entered a judgment in which he ordered plaintiff to make the payments which he had agreed to make and which defendant had agreed to accept. When the court incorporated the agreement in its mandate, its approval was implicit, but, having made the order, its mandate cannot be downgraded to mere approval.\nPlaintiff urges that since the monthly payments which he agreed to make to his wife were not denominated alimony in the judgment, they cannot be construed as such. The provision that defendant\u2019s remarriage will relieve plaintiff of the obligation to make further payments, Fox v. Fox, 253 P. 2d 1030 (Cal. Dist. Ct. App., 2d Dist., Div. 1), the circumstances surrounding the entry of the judgment, and the motives which prompted each party to consent to it, render this contention feckless. There is no suggestion in the transcript that there had been a property settlement between the parties and that the monthly payments were to reimburse defendant for property she had transferred or released to plaintiff. In order to secure his divorce in June 1966, plaintiff had to overcome the defense which defendant had alleged to his action and the cross action, both of which were based on his alleged abandonment of her. To do this, he had to obtain a jury verdict in his favor or a consent judgment from the court. He chose the latter as the safer course.\nAlthough Judge Brock had sustained plaintiff\u2019s demurrer to the cross action (the correctness of that ruling is not before us), defendant\u2019s first statement of it reveals no reason to suppose that she could not allege a cause of action under G.S. 50-16 which would withstand demurrer. The court had allowed her thirty days in which to do so. Defendant\u2019s motion for alimony pendente lite and counsel fees was still before the court, which had general jurisdiction of the parties and their marital rights. Judge Brock could have vetoed the proposed decree. Instead, he adopted it and made it his own. The order that plaintiff pay defendant the sum of $150.00 on 5 June 1966 and on the 5th day of each month thereafter, through 5 May 1976, did not denominate the payments alimony or total the installments, yet the award was indutiably alimony in gross or \u201clump sum alimony,\u201d which is fundamentally the award of a definite sum of money for the wife\u2019s support and maintenance. 27A C.J.S., Divorce \u00a7 235 (1959). \u201cOrdinarily, in the absence of express statutory authority or the consent of the parties, a court cannot award alimony in gross in lieu of a periodical allowance.\u201d 24 Am. Jur. 2d, Divorce and Separation \u00a7 615 (1966). North Carolina has no statute authorizing the court to award alimony in gross, but such alimony may be awarded with the consent of the parties. This was done in Taylor v. Taylor, 93 N.C. 418.\nBy and with the consent of the parties, the court may award permanent alimony as a sum in gross to be paid in periodic installments which shall terminate upon the wife\u2019s remarriage. 24 Am. Jur. 2d, Divorce and Separation \u00a7 616 (1966). As to the power of the divorce court to modify an award of alimony in gross, where no right to amend was reserved, see Annot., Alimony- \u2014 -Modifying Decree, 127 A.L.R. 741, 743-744; 71 A.L.R. 723, 730-734; 24 Am. Jur. 2d, Divorce and Separation \u00a7 668 (1966).\nHaving, entered its judgment awarding alimony, the court-'below had the power to enforce its order by contempt proceedings. 2 -Lee, N. C. Family Law \u00a7 166 (3d Ed., 1963) and cases therein cited. The court would demean itself if it entered a decree providing that the husband support and maintain the wife upon terms which he himself had suggested (and to which he gave his written consent), then allowed him to get an absolute divorce upon the strength of that decree, and \u2014 upon his wilful failure to comply with its terms \u2014 announced that it was powerless to enforce its judgment by contempt proceedings. Defendant, in reliance upon the judgment which she now seeks to enforce, withdrew her defense to plaintiff\u2019s divorce action. He thereby secured an absolute divorce, which put it beyond the power of the court thereafter to enter an order for alimony. G.S. 50-11. To say now that, although the court ordered the payments, its judgment is nothing more than a contract between the parties and that defendant must \u2014 as plaintiff asserts \u2014 bring an action for breach of contract in order to collect the monthly payments it decreed, will not do.\nThis judgment was not worded with the care which this Court, in Bunn v. Bunn, supra, pointed out that counsel for the wife should use in dealing with similar situations. Nevertheless, we hold that the judgment will support an attachment as for contempt if it be shown to the satisfaction of the court that plaintiff has wilfully failed to make the payments ordered. On that question, no evidence has yet been heard.\nReversed.\nLAKE, J., took no part. in the consideration or decision of this case.", "type": "majority", "author": "Shaep, J." } ], "attorneys": [ "Boyce, Lake & Burns for plaintiff appellee.", "Harrell & Mattox for defendant appellant." ], "corrections": "", "head_matter": "GEORGE CREE MITCHELL v. GERALDINE EDWARDS MITCHELL.\n(Filed 3 May, 1967.)\n1. Divorce and Alimony \u00a7 21\u2014\nA contract under which the husband agrees to pay the wife specified sums for her support may not be enforced by contempt proceedings even though the agreement is approved by the court, but if the court not only approves the agreement but orders and directs the husband to make monthly .payments for the support of the wife in accordance with the agreement, the judgment is enforceable by contempt proceedings, since failure to make the payments is in violation of the order of the court.\n2. Divorce and Alimony \u00a7 16\u2014 Order held to direct husband to make payments of alimony in accordance with agreement of parties.\nThe husband instituted action for divorce on the ground of separation. The wife denied the separation, alleged abandonment, and filed cross- \u25a0 action for alimony without divorce. The court, in accordance with agreement of the parties, ordered the husband to pay monthly payments to the wife in a specified sum for a period of ten years, and dismissed the cross-action. Thereafter the husband obtained absolute divorce in his action. Held: The sums ordered by the court to be paid the wife were payments of alimony, notwithstanding the failure of the judgment to so denominate the payments, it being clear from the record that the payments were not in furtherance of a property settlement but were intended and regarded as alimony in satisfaction of the wife\u2019s action.\n3. Same\u2014\nEven though the court may not ordinarily award alimony in a gross sum, the court may, by and with the consent of the parties, direct the husband to malr.e monthly payments in a specified sum for a period of ten years or until the wife remarries.\nAppeal by defendant from Bailey, J., at chambers in Raleigh 5 November 1966.\nThis action was instituted by plaintiff-husband in September 1965 for an absolute divorce from defendant on the ground of one year\u2019s separation. Defendant, in her answer, denied that she and plaintiff had been continuously separated for one year, alleged that he had abandoned her, and set up a cross action for alimony without divorce, counsel fees, and alimony pendente lite under G.S. 50-16.' Plaintiff demurred to The cross action and moved to dismiss, for that defendant \u201cfails to state a cause of action against plaintiff.\u201d '\nIn an order signed -2 June 1966, Judge Brock sustained plaintiff\u2019s demurrer, dismissed defendant\u2019s cross action, and allowed defendant thirty days in which to file an amended answer and cross action. Thereafter, on the same day, Judge Brock signed a judgment which recited that the parties had settled all matters in controversy between them. He \u201cObdeRed, Adjudged and Decbeed, by consent of the parties, as follows\u201d (except when quoted, the decree is summarized) :\n\u201c(1) Plaintiff shall pay to defendant the sum of $150.00 on the 5th day of June, 1966, and the sum of $150.00 on the 5th day of each month thereafter through and including the 5th day of May, 1976.\u201d\n(2) \u2014 (5) Plaintiff ordered to pay specified hospital bills and a fee to defendant\u2019s attorney.\n(6) Defendant ordered to surrender to plaintiff all credit cards issued in his name, and she agrees to make no further charges to plaintiff\u2019s account.\n\u201c(7) That this judgment shall constitute a full and final settlement of all matters raised by defendant in her cross action, and all matters which might have been raised in defendant\u2019s answer in this cause, and that neither plaintiff nor defendant shall make any further claims or demands upon the other arising out of said matters and things.\n\u201c(8) In the .event defendant remarries, plaintiff shall after said time not be obligated to make any further payments as provided hereinbefore in paragraph (1).\u201d\n(9) Plaintiff ordered to continue hospital insurance covering defendant and her three children so long as he \u201cmay legally maintain said contract.\u201d\n\u201cIt is, therefore, Ordered, Adjudged and Deceeed by consent, that defendant\u2019s \u2018Further Answer and Defense and Cross Action against the Plaintiff\u2019 be and the same is hereby dismissed and that plaintiff be taxed with the cost.\n\u201cThis the 2nd day of June, 1966.\n/s/ Walter E. Brock\nWaltee E. Brock\nJudge Presiding\n/s/ Fred T. Mattox\nFred T. Mattox\nAttorney for Defendant\n/s/ Eugene Boyce\nEugene Boyce\nAttorney for Plaintiff\n\u201cWe Consent:\n/s/ Geraldine Edwards Mitchell\nGeraldine Edwards Mitchell\n/s/ George Cree Mitchell\nGeorge Cree Mitchell\u201d\nPlaintiff made the June payment of $150.00. On 18 July 1966, he secured a judgment of absolute divorce. In July, he paid nothing. In August 1966, he paid defendant $119.40, and since then has made no payment. On 17 October 1966, when plaintiff was in arrears $330.60 with his monthly payments, defendant secured a rule commanding plaintiff to appear before the resident judge of the district and show cause why he should not be punished as for contempt for failing to comply with the order of 2 June 1966. When the matter came on for hearing before Judge Bailey, he held as a matter of law that the consent judgment dated 2 June 1966 is not enforceable against plaintiff by contempt proceedings. He ^charged the rule to show cause, and d\u00e9fendant appealed.\nBoyce, Lake & Burns for plaintiff appellee.\nHarrell & Mattox for defendant appellant." }, "file_name": "0253-01", "first_page_order": 293, "last_page_order": 298 }