Opinion
No. COA11–1183.
2012-05-15
Catherine MARKS, Plaintiff, v. R. Harrison MARKS, Defendant.
David B. Hough, P.A., by David B. Hough, for plaintiff-appellant. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for defendant-appellee.
Appeal by plaintiff from judgment entered 6 July 2011 by Judge George A. Bedsworth in Forsyth County District Court. Heard in the Court of Appeals 20 February 2012. David B. Hough, P.A., by David B. Hough, for plaintiff-appellant. Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for defendant-appellee.
MARTIN, Chief Judge.
Plaintiff appeals from the trial court's grant of summary judgment in favor of defendant. Because no genuine issues of material fact exist and defendant is entitled to judgment as a matter of law dismissing plaintiff's claim to enforce a void contract, we affirm.
The parties married in 1975, and two children were born of the marriage. In October 2008, the parties separated, and, in March 2009, the parties executed a “Separation Agreement and Property Settlement,” which was in writing and acknowledged by both parties before a certifying officer. In April 2010, plaintiff filed a “Complaint for Divorce and Equitable Distribution” in Forsyth County District Court.
In relevant part, plaintiff's complaint alleged that the written separation agreement was not dispositive of all equitable distribution issues, and she therefore requested a hearing on those issues. In defendant's answer he asserted that the separation agreement was dispositive of all equitable distribution issues. Plaintiff's subsequent motion to amend her complaint was allowed, and, when amended, she alleged that the parties had entered into another contract in March 2009 (the “oral contract”) as “consideration” for the separation agreement. Specifically, plaintiff alleged that defendant had agreed to pay her $200,000 of the proceeds from the sale of houses and lots the parties owned on Oak Island and in New Bern; premiums for comprehensive medical and hospitalization insurance to cover plaintiff's medical needs for a minimum of two years until sometime “when plaintiff's horse farm became sufficiently profitable to permit the plaintiff to acquire insurance without assistance from the defendant”; and up to $5000 of the cost of plaintiff's tuition and expenses for nursing school. Plaintiff also alleged defendant had failed to pay her at least $83,423.69 from the sale of property, had paid only $840 of the $5000 for her nursing school tuition and expenses, and had indicated he had no intention of paying her insurance premiums beyond December 2010. As a result, plaintiff asserted claims for breach of contract and fraud.
Defendant moved to dismiss under N.C.G.S. § 1A–1, Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Defendant contended that the parties' marital divisible property had been identified and distributed and that the written separation agreement was dispositive of all equitable distribution issues.
In November 2010, the trial court entered a “Judgment for Absolute Divorce.” Following discovery and a hearing on defendant's motion, the trial court treated the motion as one for summary judgment and entered summary judgment for defendant.
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We review the trial court's grant of summary judgment in favor of defendant de novo. See Jones v. Skelley, 195 N.C.App. 500, 503, 673 S.E.2d 385, 387 (2009). Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011). “The purpose of a summary judgment hearing is to allow the court to determine from a forecast of the evidence if there is a material issue of fact that is triable.” Lawson v. Lawson, 321 N.C. 274, 279, 362 S.E.2d 269, 272 (1987). “A question of fact which is immaterial does not preclude summary judgment.” Keith v. G.D. Reddick, Inc., 15 N.C.App. 94, 96, 189 S.E.2d 775, 776 (1972).
N.C.G.S. § 52–10.1 provides that
[a] ny married couple is hereby authorized to execute a separation agreement not inconsistent with public policy which shall be legal, valid, and binding in all respects; provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52–10(b).
N.C. Gen.Stat. § 52–10.1 (2011) (emphasis added). “A separation agreement is a contract between spouses providing for marital support rights and ... executed while the parties are separated or are planning to separate immediately.” Sluder v. Sluder, 198 N.C.App. 401, 402, 679 S.E.2d 435, 436 (2009) (omission in original) (internal quotation marks omitted). The heart of a separation agreement is the parties' intention and agreement to live separate and apart forever. In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E.2d 541, 545 (1976).
In this case, it is undisputed that the parties separated in October 2008, that they have lived separate and apart since that time and have at no time resumed their marital relationship, that the oral contract was formed in March 2009, and that a judgment for divorce was entered in November 2010. Thus, these undisputed facts show the parties were separated at the time the oral contract was formed and intended to live separate and apart forever at that time. Further, the oral contract concerns a portion of the proceeds from the sale of marital or divisible property and support payments to plaintiff intended to cover some of her personal expenses. Because the oral contract involves payments for spousal support and from the sale of marital or divisible property and was made during the parties' separation while they intended to live separate and apart forever, it was governed by N.C.G.S. § 52–10.1. See Sluder, 198 N.C.App. at 403, 679 S.E.2d at 437 (holding that N.C.G.S. § 52–10.1 governed an agreement for spousal support made while the parties were separated). Furthermore, with regard to the portion of the agreement concerning proceeds from the sale of marital or divisible property, N.C.G.S. § 50–20(d) provides that,
[b] efore, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52–10 and 52–10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property or divisible property, or both, in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
N.C. Gen.Stat. § 50–20(d) (2011) (emphasis added).
“If a separation agreement is improperly executed, it is void ab initio.” Moore v. Moore, 108 N.C.App. 656, 658, 424 S.E.2d 673, 675 (1993). Because the contract plaintiff seeks to enforce was not in writing and acknowledged by both parties before a certifying officer as defined in N.C.G.S. § 52–10(b), the trial court did not err by concluding it was unenforceable as a matter of law and by granting summary judgment in defendant's favor. The facts plaintiff contends are disputed are immaterial and do not preclude summary judgment. Although we have examined plaintiff's remaining arguments, including ratification of the oral contract and fraud in the inducement, we conclude these arguments are entirely without merit and that they do not warrant further discussion.
Affirmed. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).