However, where the parties include unequivocal integration or non-integration clauses in the agreement, this language governs. See Acosta v. Clark, 70 N.C. App. 111, 114, 318 S.E.2d 551, 554 (1984) (separation agreement expressly stated that the support provisions were independent of the property settlement provisions); see also Britt v. Britt, 36 N.C. App. 705, 711, 245 S.E.2d 381, 385 (1978) (same); Henderson v. Henderson, 55 N.C. App. 506, 507, 286 S.E.2d 657, 659 (1982), aff'd, 307 N.C. 401, 298 S.E.2d 345 (1983) (order included language that provisions of judgment were integrated). In those cases where no such explicit clauses exist, an evidentiary hearing to determine the parties' intent is required.
We hold, therefore, that where, as here, the court incorporates by reference a separation agreement into a consent judgment, making the agreement a part of the judgment and ordering compliance with its terms, the agreement merges into the consent judgment and is superseded by the court's decree, any language to the contrary notwithstanding. Cf. id. at 408, 298 S.E.2d at 350 (court-ordered consent judgment is enforceable by civil contempt notwithstanding the fact that it contains unequivocal language that it is nonmodifiable); Acosta v. Clark, 70 N.C. App. 111, 115, 318 S.E.2d 551, 554 (1984) (separable and independent alimony provisions incorporated into divorce judgment are modifiable notwithstanding any express language to the contrary). In summary, we hold that the trial court did not err in finding that the spousal support provisions of the Deed of Separation were ordered by the court in its 21 May 1974 judgment consented to by the parties.
In line with many cases decided by this Court, we find the distinction between court ordered and contractual support obligations significant and hold N.C. Gen.Stat. § 50–16.9 only reflects the public policy regarding court ordered alimony or postseparation support. See Acosta v. Clark, 70 N.C.App. 111, 115, 318 S.E.2d 551, 554 (1984) (citing Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983) (discussing the difference between a separation agreement treated as a contract and a separation agreement that has been approved by the court as part of a court ordered judgment)); see also Williamson v. Williamson, 142 N.C.App. 702, 704, 543 S.E.2d 897, 898 (2001) (emphasizing N.C. Gen.Stat. § 50–16.9 refers to spousal support payments pursuant to a judgment or order). "[I]f the parties wish to preserve their agreement as a contract they need only avoid submitting their agreement to the court."
Id. at 711, 245 S.E.2d at 385. Likewise, in Acosta v. Clark, 70 N.C. App. 111, 318 S.E.2d 551 (1984), the parties' separation agreement provided that [t]he provisions of alimony to the Wife are independent of any division or agreement for division of property between the parties, and shall not for any purpose be deemed to be a part of or merged in or integrated with a property settlement of the parties.
However, Mr. Kern, Mrs. Shannon's domestic law counsel, testified that a recent North Carolina family law decision held that a separation agreement, which was incorporated into a divorce judgment, may be modified with respect to its alimony provisions despite language in the agreement that prohibits modification without the consent of the parties. Acosta v. Clark, 70 N.C. App. 111, 318 S.E.2d 551 (1984). Mr. Kern explained that although the parties intended the payments as support, they both wanted the payments to continue unchanged for a certain period of time.
However, "where the parties include unequivocal integration or non-integration clauses in the agreement, this language governs." Hayes, 100 N.C. App. at 147, 394 S.E.2d at 680 (1990) (citing Acosta v. Clark, 70 N.C. App. 111, 114, 318 S.E.2d 551, 554 (1984) (separation agreement expressly stated that the support provisions were independent of the property settlement provisions)). In White, the Court adopted what it considered a "sensible approach for 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[.
Said review and revision by the court shall include consideration of the estates, earnings, earning capacity, condition, accustomed standard of living of the parties and other relevant facts as provided by law. Such consideration shall not include the then income or estate of Husband's spouse, if any, nor the inheritance of Husband, if any. While this capability for independent modification might, under Acosta v. Clark, 70 N.C. App. 111, 318 S.E.2d 551 (1984), be construed to mean that the alimony provision is separable from the rest of the agreement and therefore modifiable under G.S. 50-16.9, we do not think that is the intention of the parties or the court in this case. Rather, it indicates an intent that the alimony provision not be modified except under the terms of the agreement and then only after a fixed length of time.
Again we are presented with the question of the modifiability of the support provisions of a separation agreement made a part of a consent order. See Cecil v. Cecil, supra; see also, Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732 (1984), modified and affirmed, 313 N.C. 169, 326 S.E.2d 259 (1985); Acosta v. Clark, 70 N.C. App. 111, 318 S.E.2d 551 (1984). We note first that the rule of Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), in which the Supreme Court held that separation agreements presented to the court for inclusion into consent orders were modifiable by the courts does not apply to this case.