Domestic Relations – Unincorporated Separation Agreement – Child Support & Alimony – Husband’s Income – Specific Performance & Money Judgment

Lasecki v. Lasecki (Lawyers Weekly No. 011-385-17, 44 pp.) (Linda McGee, C.J.) Appealed from Iredell County District Court (Edward Hedrick IV, J.) N.C. App.

Holding: Even though the plaintiff-husband’s income had decreased, since the parties’ separation agreement was not incorporated into any trial court order, the trial court could not unilaterally decrease the amount plaintiff owed in child support or alimony under the agreement. However, the trial court could, and did, order specific performance in a reduced amount, making the remaining arrearage subject to a money judgment.

We affirm the trial court’s judgment and its denial of plaintiff’s motion to consider new evidence.

Child Support

Contrary to plaintiff’s position, the trial court was without authority, absent the defendant-wife’s consent, to modify the separation agreement solely for the purpose of reducing his child support obligation. The parties have not mutually consented to modification of the separation agreement. Therefore, the trial court’s rulings had to be based solely upon its inherent and statutory authority to provide for the welfare of the parties’ minor children.

Traditionally, when faced with an unincorporated separation agreement, the question for the trial court was limited to whether the needs of the children were being adequately met by the amount of child support agreed upon in the unincorporated separation agreement or whether the amount of child support should be increased in order to meet the children’s needs. This court eventually recognized the discretionary authority of the trial court to order specific performance of contractual child support obligations in a decreased amount, based on the current needs of the children and the current financial standing of their parents.

The trial court did not and cannot modify the separation agreement to decrease the amount of child support plaintiff owed defendant in the past or the amount of child support plaintiff owes defendant moving forward. The terms of the separation agreement establish plaintiff’s contractual duties, and these are not affected by the order of the trial court.

When money damages are an inadequate remedy, the trial court may order specific performance. However, specific performance will not be decreed against a defendant who is incapable of complying with his contract.

A trial court that has determined a party is not currently capable of specifically performing one or more of his obligations under a contract could still enter a money judgment against that party in the entire amount of the damages resultant from his breach. This award would establish the total amount of damages owed due to the breach, but the trial court could not order the party to specifically perform immediate payment of those damages.

The trial court did not err by ordering plaintiff to pay the full breach of contract damages “enforceable as other money judgments,” while ordering specific performance of a lesser amount, which the court found plaintiff capable of paying.

Alimony

The trial court had no authority to alter the terms of alimony as set forth in the separation agreement, but it could order specific performance of the agreement in an amount less than that demanded in the agreement upon determining that plaintiff was not capable of performing to the full extent of his obligations.

Following the trial court’s order, plaintiff is still contractually obligated to pay defendant alimony in the amount of $3,600 per month. However, the trial court only granted defendant specific performance by plaintiff for his alimony obligation in the amount of $2,850 per month.

Plaintiff directs this court to no authority supporting his contention that the attorney’s fees he was required to pay due to his breach of the separation agreement should be factored into his monthly expenses, or that the trial court erred in determining that plaintiff’s current wife contributes to their joint expenses.

Motion to Reopen

We recognize the difficulties inherent in cases such as the present case, in which a substantial change in circumstances may occur at any time. However, we cannot help but note that if the trial court had allowed the evidence of plaintiff’s actual income in his new job to be presented and considered, many of the issues addressed by this appeal might have become moot. At a minimum, this court would not have been required to go through the process of deciding issues based upon relevant facts that were no longer accurate at the time notice of appeal was filed.

As the trial court noted, “Allowing plaintiff’s motion may [have] allow[ed] the [trial] court to fashion an order based upon facts existing at a time nearer to the filing of the written order”; by so doing, the trial court’s order would have more likely reflected the current financial situation of the parties, and our opinion would more likely address issues and facts that had not lost much of their relevance.

Nevertheless, in light of the great discretion afforded the trial court in deciding whether to reopen the evidence in a case, plaintiff’s minimal effort in providing information relevant to the trial court’s decision, and the trial court’s thorough explanation of its decision, we cannot find that the decision to deny plaintiff’s motion to reopen the case was an abuse of discretion.

Affirmed.