Common use of Contempt Clause in Contracts

Contempt. civil--failure to pay alimony--ability to comply [1] We first note that defendant erred in moving to terminate alimony under Rule 60(b)(6). “[W]henever the parties bring their separation agreements before the court for the court’s 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.” ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). When the parties submitted their separation agreement to the court, it became a court order and subject to the rules concerning such orders. N.C. Gen. Stat. § 50-16.9 clearly outlines the procedure for modifying or vacating alimony awards. “Where one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability.” Trustees of Rowan Tech. ▇. ▇▇▇▇▇▇▇ Assoc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985). Defendant should have moved to terminate the alimony award under N.C. Gen. Stat. § 50-16.9, not Rule 60(b)(1). However, the motion was assessed under the standards of N.C. Gen. Stat. § 50-16.9 by the trial court and we will review the matter as if defendant had in fact made the motion under that statute. On appeal, defendant argues that the trial court erred in concluding that plaintiff did not cohabit with ▇▇▇▇▇ and that the trial court erred in finding him in contempt of court for not paying alimony. “[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts.” Shear

Contempt. civil--failure to pay alimony--ability to comply [1] We first note that defendant erred in moving to terminate alimony under Rule 60(b)(6). “[W]henever the parties bring their separation agreements before the court for the court’s court‟s 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.” ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). When the parties submitted their separation agreement to the court, it became a court order and subject to the rules concerning such orders. N.C. Gen. Stat. § 50-16.9 clearly outlines the procedure for modifying or vacating alimony awards. “Where one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability.” Trustees of Rowan Tech. ▇. ▇▇▇▇▇▇▇ Assoc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985). Defendant should have moved to terminate the alimony award under N.C. Gen. Stat. § 50-16.9, not Rule 60(b)(1). However, the motion was assessed under the standards of N.C. Gen. Stat. § 50-16.9 by the trial court and we will review the matter as if defendant had in fact made the motion under that statute. On appeal, defendant argues that the trial court erred in concluding that plaintiff did not cohabit with ▇▇▇▇▇ and that the trial court erred in finding him in contempt of court for not paying alimony. “[W]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court’s court‟s findings of fact and whether its conclusions of law were proper in light of such facts.” ShearShear ▇. ▇▇▇▇▇▇▇ Building Co., ▇▇▇ ▇.▇. App. 154, 160, 418 S.E.2d 841, 845 (1992). [2] Defendant first argues that the trial court erred in concluding that plaintiff did not cohabit with ▇▇▇▇▇. The parties are not in disagreement as to the essential facts presented before the trial court. ▇▇▇▇▇▇, defendant is arguing that the trial court erred as a matter law in its application of N.C. Gen. Stat. § 50-16.9(b). Defendant asserts that the facts presented met the definition of cohabitation as provided in the statute. N.C. Gen. Stat. § 50-16.9(b) defines cohabitation: As used in this subsection, cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations. Nothing in this section shall be construed to make lawful conduct which is made unlawful by other statutes. N.C. Gen. Stat. § 50-16.9(b) (2003). The evidence presented in this case, through the testimony of the parties, their son and the plaintiff‟s neighbor, primarily addressed plaintiff and ▇▇▇▇▇‟s intimate relationship and the number of nights that ▇▇▇▇▇ spent at plaintiff‟s home. The trial court also received some testimony as to plaintiff and ▇▇▇▇▇ taking overnight trips, having dinners together and watching television together. We also note that there was evidence that plaintiff and ▇▇▇▇▇ were engaged to be married at the time of the hearing, though there was no evidence presented that plaintiff and ▇▇▇▇▇ were engaged at the time that defendant ceased paying alimony. This Court recently emphasized that “[i]n order for the trial court to conclude that cohabitation has occurred, it should make findings that the type of acts included in the statute [N.C. Gen. Stat. § 50-16.9(b)] were present.” Long v. Long, 160 N.C. App. 664, 667, 588 S.E.2d 1, 3 (2003). Thus, in order for a trial court to conclude that one party has engaged in cohabitation, there must be evidence that the party engaged in the “voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include but are not necessarily dependent on, sexual relations.” N.C. Gen. Stat. § 50-16.9(b). The holding in Long is in line with how our courts have dealt with issues of cohabitation in another context, the resumption of marital relations. Under N.C. Gen. Stat. § 52-10.1, married couples may execute separation agreements, however the executory terms of a separation agreement are terminated upon the “resumption of the marital relation.” In re Estate of ▇▇▇▇▇▇, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976). N.C. Gen. Stat. § 52-10.2 defines the resumption of marital relations as the “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of martial relations.” N.C. Gen. Stat. § 52-10.2 (2003). The cases that apply this statute address whether married couples have reconciled and resumed cohabitation by looking at the particular circumstances that evidence a husband and wife relationship. We find these cases instructive in determining what constitutes marital rights, duties and obligations under N.C. Gen. Stat. § 50-16.9. Our courts use one of two methods to determine whether the parties have resumed their marital relationship, depending on whether the parties present conflicting evidence about the relationship. See ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 107 N.C. App. 366, 420 S.E.2d 186 (1992), disc. review denied, 333 N.C. 347, 426 S.E.2d 710 (1993). In the first test, developed from Adamee, where there is objective evidence, that is not conflicting, that the parties have held themselves out as man and wife, the court does not consider the subjective intent of the parties. ▇▇▇▇▇▇▇, 107 N.C. App. at 373, 420 S.E.2d at 190. The other test grew out of the opinion in Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, disc. rev. denied, 300 N.C. 556, 270 S.E.2d 107 (1980), and addresses cases where the objective evidence of cohabitation is conflicting and thus allows for an evaluation of the parties‟ subjective intent. ▇▇▇▇▇▇▇, 107 N.C. App. at 371, 420 S.E.2d at 189. The only conflict in the objective evidence presented in the instant case was the number of nights per week that ▇▇▇▇▇ spent the night at plaintiff‟s home. We find the objective test announced in ▇▇▇▇▇▇ and applied in ▇▇▇▇▇▇▇ instructive in this instance. The court in Adamee, quoting Young ▇. ▇▇▇▇▇, 225 N.C. 340, 34 S.E.2d 154 (1945), said that “cohabitation means living together as man and wife, though not necessarily implying sexual relations. Cohabitation includes other marital responsibilities and duties.” ▇▇▇▇▇▇, 291 N.C. at 392, 230 S.E.2d at 546. This Court in ▇▇▇▇▇▇▇ applied the Adamee test and found cohabitation based on evidence such as the fact that the former husband kept an automobile at the common residence, lived in the residence continuously, moved his belongings to the residence, paid the utility bills and mowed the lawn. ▇▇▇▇▇▇▇, 107 N.C. App. at 373, 420 S.E.2d at 190. The Court also considered that the former wife did the laundry, worked in the yard with the former husband and engaged in sexual relations with him. Id. As defendant in the instant case presented no evidence of activities beyond plaintiff‟s and ▇▇▇▇▇‟s sexual relationship and their occasional trips and dates, we see no assumption of any “marital rights, duties, and obligations which are usually manifested by married people,” such as those outlined in ▇▇▇▇▇▇▇. Thus, the trial court did not err in concluding that plaintiff had not cohabited. Accordingly, the trial court did not err in denying defendant‟s motion to terminate alimony.