White v. Bowers

400 S.E.2d 760 (1991) 101 N.C. App. 646 Teresa P. WHITE, Plaintiff, v. Charlie Ray BOWERS, Defendant. No. 9018DC335. Court of Appeals of North Carolina. February 19, 1991. *762 Wyatt Early Harris Wheeler & Hauser by A. Doyle Early, Jr., and Lee M. Cecil, High Point, for plaintiff. Kathleen E. Nix, High Point, for defendant. ORR, Judge. The issue on appeal is whether the trial court erred in granting defendant's motion for summary judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 56 (1990). For the reasons set forth below, we conclude that the trial court erred in granting summary judgment in favor of defendant. "Review of summary judgment on appeal is limited to whether the trial court's conclusions are correct as to the questions of whether there is a genuine issue of material fact and whether the movant is entitled to judgment." Vernon v. Barrow, 95 N.C.App. 642, 643, 383 S.E.2d 441, 442 (1989). In Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C.App. 138, 142, 215 S.E.2d 162, 165 (1975), we stated: If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact. Although findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. The "Findings of Fact" entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on this appeal and are irrelevant to our decisions. Therefore, the trial court's findings of facts are not binding in this appeal. Plaintiff contends that there were genuine issues of material fact regarding 1) whether the child support provisions and the provisions regarding post high school education in the separation agreement were separable or interdependent; 2) whether plaintiff breached these provisions by obtaining an increase in child support, thereby refusing the 50 percent reduction in child support as provided in the agreement; and 3) whether such a breach was material so that the post high school education provisions were voided, thereby removing plaintiff's right to seek enforcement of this provision. In determining whether a wife's breach of provisions in a separation agreement regarding visitation rights constituted a defense to the husband's failure to make support payments pursuant to the separation agreement, we stated: "These authorities are to the effect (1) that it is not every violation of the terms of a separation agreement by one spouse that will exonerate the other from performance; (2) that in order that a breach by one spouse of his or her covenants may relieve the other from liability from the latter's covenants, the respective covenants must be interdependent rather that independent; and (3) that the breach must be of a substantial nature, must not be caused by the fault of the complaining party, and must have been committed in bad faith." Williford v. Williford, 10 N.C.App. 451, 455, 179 S.E.2d 114, 117, cert. denied, 278 N.C. 301, 180 S.E.2d 177 (1971) (quoting Smith v. Smith, 225 N.C. 189, 197-98, 34 S.E.2d 148, 153 (1945)). Thus, a critical issue in deciding whether a spouse's breach of a provision of a separation agreement is a defense is determining whether the provisions are interdependent or dependent. In Williford, the Court held that provisions for custody and visitation in the separation agreement were independent of the provisions for support and maintenance such that the wife's breach of the visitation provisions was not a defense to the husband's obligation to pay for plaintiff's support and maintenance. 10 N.C.App. at 456, 179 S.E.2d at 117. In determining whether support provisions and property division provisions of a *763 consent judgment were interdependent, our Supreme Court stated: The answer depends on the construction of the consent judgment as a contract between the parties. "The heart of a contract is the intention of the parties. The intention of the parties must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed." White v. White, 296 N.C. 661, 667-68, 252 S.E.2d 698, 702 (1979) (quoting Adder v. Holman & Moody, Inc., 288 N.C. 484, 492, 219 S.E.2d 190, 196 (1975)). In White, the provisions were not "clearly separable," the parties' intent regarding whether the two provisions were independent was not clear from the language of the contract, and the parties did not "express an intent that the provisions be considered reciprocal consideration for each other and thus inseparable." White, 296 N.C. at 668, 252 S.E.2d at 702. The Court stated that "[t]he record is devoid of any facts bearing on the negotiations between the parties, their financial situations before and at the time they consented to the judgment, and their motivation for entering into an agreement with these particular terms." Id. at 669, 252 S.E.2d at 703. Therefore, the Court stated that "[e]vidence of the situation of the parties at the time they consented to the judgment is therefore essential to resolution of the issue." Id. In "dealing with the issue of separability of provisions in a consent judgment or separation agreement in cases in which the question is not adequately addressed in the document itself," the White Court held that "in such cases there is a presumption that provisions in a separation agreement or consent judgment made a part of the court's order are separable...." Id. at 671-72, 252 S.E.2d at 704. The Court concluded that an evidentiary hearing was necessary. Id. at 672, 252 S.E.2d at 704. In Hayes v. Hayes, 100 N.C.App. 138, 147-48, 394 S.E.2d 675, 680 (1990), we stated: The effect of this presumption [in White] is to place the burden of proof on the issue of separability on the party claiming that the agreement is integrated.... This 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. However, where the parties include unequivocal integration or non-integration clauses in the agreement, this language governs. In those cases where no such explicit clauses exist, an evidentiary hearing to determine the parties' intent is required. [citations omitted] In the case before us, there is no clause in the Separation Agreement in question stating whether the terms of the document are integrated or non-integrated (independent or interdependent). Therefore, the Court must look to the intent of the parties, and determine whether the specific parts of the agreement are integrated and dependent of each other or non-integrated and independent of each other. See White, 296 N.C. at 668-69, 252 S.E.2d at 702-03. If there is evidence raising a genuine issue of material fact, then the trier of fact must decide the issue. Here the trial court made findings of fact that the child support limitation and the payment of college expenses were integrated parts of the agreement. If fact finding was necessary, then summary judgment was inappropriate, and we so hold although we note that the trial court references in its order certain "stipulation of facts" which is not included in the record. We reject, as inconsistent with White and Hayes, any argument that the terms of a separation agreement and/or property settlement agreement in the absence of clear language in the agreement(s) are as a matter of law either independent or interdependent. In the present case it is not clear whether or not the provisions of the separation agreement are integrated. Since genuine issues of material fact exist, summary judgment was inappropriate. Therefore, *764 we conclude that the trial court erred in granting summary judgment. The order of the trial court is therefore reversed and remanded for a hearing on the merits and issues raised. Reversed and Remanded. PHILLIPS, J., concurs. GREENE, J., concurs with a separate opinion. GREENE, Judge, concurring. In determining the intent of the parties regarding the issue of whether the terms of an agreement are integrated or non-integrated, the central issue is whether the provisions were negotiated in reciprocal consideration for each other. If in reciprocal consideration, the provisions are deemed integrated. If not in reciprocal consideration, the provisions are deemed separate or non-integrated. Just as provisions of a separation agreement may or may not constitute reciprocal consideration for a property settlement agreement and therefore be integrated or non-integrated, see Stegall v. Stegall, 100 N.C.App. 398, 410-11, 397 S.E.2d 306, 312-13 (1990) (evidence that property settlement and separation agreements were reciprocal); In re Tucci, 94 N.C.App. 428, 437, 380 S.E.2d 782, 787 (1989), aff'd. per curiam, 326 N.C. 359, 388 S.E.2d 768 (1990) (no evidence that property settlement and separation agreements were reciprocal); Small v. Small, 93 N.C.App. 614, 626, 379 S.E.2d 273, 280, disc. rev. denied, 325 N.C. 273, 384 S.E.2d 519 (1989) (no evidence that property settlement and separation agreements were reciprocal), separate provisions of a separation agreement may also be either integrated or non-integrated.