An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA14-274
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 16 December 2014


KAREN H. WHITE,
     Plaintiff

      v.                                          Pasquotank County
                                                  No. 09-CVD-770
RICHARD McMULLEN WHITE,
     Defendant.


      Appeal by Plaintiff from judgments entered 22 February 2011

by Judge Robert P. Trivette and 17 September 2013 by Judge C.

Christopher Bean in Pasquotank County District Court.                         Heard in

the Court of Appeals 10 September 2014.


      The Twiford Law Firm,               P.C.,    by   Edward   A.        O’Neal,   for
      Plaintiff-Appellant.

      Pritchett & Burch, PLLC, by Lloyd C. Smith, Jr., Lloyd C.
      Smith, III, and Jonathan E. Huddleston, for Defendant-
      Appellee.


      DILLON, Judge.


      Karen    H.    White     (“Wife”)    appeals      from   the    trial    court’s

declaratory         judgment      barring     her       claim        for     equitable

distribution of real property acquired by Richard McMullen White

(“Husband”) in his own name during the marriage based on the
                                   -2-
terms of an antenuptial agreement.          She also appeals from the

final consent judgment awarding alimony, attorney’s fees, and

equitable distribution.      For the following reasons, we affirm.

                              I. Background

    Husband and Wife were married in 1983 and three children

were born of the marriage.       Shortly before their marriage, the

parties    signed   an   antenuptial    agreement   (the    “Antenuptial”)

which addressed their rights to certain property owned by either

party.

    At the time of their nuptials, Husband owned real estate

associated with his used car business; Plaintiff owned personal

property but not any real estate.         During the marriage, Husband

acquired several rental properties titled in his name.                 Also

during the marriage, Husband and Wife purchased their marital

home, which was titled in both of their names.

    In 2009, the parties separated.            Wife filed this action

raising claims for child custody and support, post separation

support    and   alimony,   equitable    distribution,     and   attorney’s

fees.     Husband filed his answer admitting that the marital home

was “marital property” but pleaded that the Antenuptial was a

bar to equitable distribution with respect to property he owned

in his individual name.
                                          -3-
    In 2010, Wife filed a motion for declaratory judgment to

determine the rights and obligations of the parties under the

Antenuptial.        Husband       filed    a     motion       for   partial   summary

judgment requesting the trial court to decree that the terms of

the Antenuptial operated as a bar to Wife’s claim for equitable

distribution of the real estate titled to him.

    In 2011, following a hearing on the matter, the trial court

entered    a   declaratory       judgment       (the     “Declaratory     Judgment”)

stating that the Antenuptial was unambiguous and that it barred

Wife’s     claim   for    equitable       distribution         of    Husband’s     real

estate.

    In     2013,   the    trial    court       entered    a    consent    order    (the

“Consent    Order”)      which   resolved       the    remaining     claims   of   the

Wife.     The Consent Order stated that Wife’s claims for equitable

distribution of Husband’s real estate had been adjudicated by

the Declaratory Judgment and that Wife had not waived her right

to appeal the Declaratory Judgment.

    On 2 October 2013, Wife filed appeal from the Declaratory

Judgment and the Consent Judgment.

                                   II. Analysis

    On appeal,        Wife contends that the trial court erred in

finding    that    the    Antenuptial      was    unambiguous        in   creating   a
                                         -4-
waiver of her         marital interest in         real property acquired by

Husband during the marriage.             She concludes that this property

should   be     classified       as    marital    property    and       subject    to

equitable distribution.           Husband counters that Wife waived any

challenge to the Consent Judgment; that her entire appeal should

be dismissed because she has attempted to manipulate the rules

of procedure to appeal from an interlocutory order; and that the

Declaratory Judgment and Consent Judgment should be, otherwise,

affirmed.

                             A. Waiver/Dismissal

      Husband contends that Wife waived her right to appeal from

the Consent Judgment         which set the         final terms of equitable

distribution     by    failing    to    raise    any   argument    in    her    brief

challenging this judgment.              Wife concedes in her reply brief

that she has abandoned her appeal of the claims adjudicated by

the   Consent    Judgment.            Accordingly,     any   appeal      from     the

adjudication of those claims has been waived.                     However, Wife’s

failure to present an argument regarding the Consent Judgment

does not waive her right to appeal from the Declaratory Judgment

adjudicating her equitable distribution claim regarding the real

estate acquired by Husband in his name during the marriage.
                                    -5-
      Husband also argues that Wife’s appeal from the Declaratory

Judgment should be dismissed, contending that she has attempted

to manipulate the rules of         procedure     by signing the Consent

Judgment so that her appeal from the Declaratory Judgment would

not be interlocutory.         Specifically, Husband argues that the

Consent   Judgment     “specifically       acknowledged      the    right    to

reinstate a claim if the appeal was successful” in contradiction

to our holding in Hill ex Rel Hill v. West, 177 N.C. App. 132,

627 S.E.2d 662 (2006).

      We believe that our holding in Hill is distinguishable from

the   present   case   and,   therefore,    overrule    Husband’s    argument

that Wife’s appeal should be dismissed.              We recently noted that

“[t]his Court has . . . repeatedly limited Hill to the specific,

unusual facts present in that case.”             Tong v. Dunn, ___ N.C.

App. ___, ___,     752 S.E.2d 669, 674 (2013) (citing Curl v. Am.

Multimedia, Inc., 187 N.C. App. 649, 654, 654 S.E.2d 76, 80

(2007); Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C.

App. 467, 472, 665 S.E.2d 526, 530 (2008); and Duval v. OM

Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261 (2007)).                 In

Hill, the plaintiffs raised a number of claims against a number

of parties.     177 N.C. App. at 133, 627 S.E.2d at 663.            The trial

court   granted   summary     judgment     against    the   plaintiffs      with
                                             -6-
respect to some of the claims.                     Id.     This Court dismissed the

plaintiff’s     appeal    from     a    partial          summary    judgment     order    as

interlocutory, and noted that additionally the plaintiffs had

failed    to   include    a   statement        of        the   grounds    for    appellate

review in violation of the appellate rules of procedure.                            Id. at

133, 627 S.E.2d at 663.                On remand to the trial court, the

plaintiffs     attempted      to   effect      an        immediate      appeal   from    the

partial summary judgment order by voluntarily dismissing their

remaining claims in a rather unique manner.                             Id. at 135, 627

S.E.2d    at   664.    Specifically,          the    plaintiffs         dismissed    their

remaining claims in the form of a consent judgment entered by

the trial court whereby the plaintiffs’ remaining claims were

dismissed.     Id. at 134-35, 627 S.E.2d at 663-64.                         However, the

consent    judgment      allowed       the    plaintiffs           to   resurrect    these

dismissed claims in the event the plaintiffs won their appeal

regarding the other claims, even if the appeal was not resolved

in one year, thereby circumventing the requirements of N.C. R.

Civ. P. 41.      Id.     We dismissed the appeal as having been taken

from an interlocutory order, stating that the “manipulat[ion of]

the Rules of Civil Procedure in an attempt to appeal the []

summary judgment that otherwise would not be appealable” did not
                                              -7-
convert the partial summary judgment order into an appealable

final judgment.          Id. at 135, 627 S.E.2d at 664.

    In the present case, however, the Consent Judgment does not

contain any language that attempts to manipulate N.C. R. Civ. P.

41 through the inclusion of a statement that claims could be

reinstated        at     any    time       without      regard    to     the     one-year

limitation.        This judgment simply states that it is a final

judgment     on        the    equitable       distribution       claim     “pending”     a

successful        appeal       by     Wife     challenging       the     trial     court’s

Declaratory       Judgment          regarding    the    Antenuptial,       which    could

operate to reinstate the claim for equitable distribution with

respect    to     Husband’s         real     estate.      Therefore,      Hill     is   not

controlling and Defendant’s argument is overruled.

                               B. Antenuptial Agreement

    Wife argues              that the trial court erred in finding that

there were no ambiguities in the Antenuptial and concluding that

it barred equitable distribution of the property acquired by one

of the parties during their marriage.                    We disagree.

    “Declaratory judgment affords the appropriate procedure to

alleviat[e]        uncertainty         in     the      interpretation      of     written

instruments and to clarify litigation associated with an actual

controversy.”           McCabe v. Dawkins, 97 N.C. App. 447, 449, 388
                                        -8-
S.E.2d 571, 572 (citation omitted), disc. review denied, 326

N.C. 597, 393 S.E.2d 880 (1990).              Under the Uniform Declaratory

Judgment Act, N.C. Gen. Stat. § 1-253 et seq., “the court’s

findings of fact are conclusive if supported by any competent

evidence; and a judgment supported by such findings will be

affirmed,    even   though     there    is    evidence    which    might    sustain

findings    to   the    contrary[.]”         Nationwide    Mut.     Ins.    Co.   v.

Allison,    51   N.C.   App.   654,    657,    277   S.E.2d     473,    475,   disc.

review   denied,    303   N.C.   315,    281    S.E.2d    652     (1981).      Thus,

“[t]he function of our review is, then, to determine whether the

record contains competent evidence to support the findings[] and

whether the findings support the conclusions.”                    Id.    The trial

court’s conclusions of law are reviewable de novo.                         Cross v.

Capital Transaction Grp., Inc., 191 N.C. App. 115, 117, 661

S.E.2d 778, 780 (2008) (citation omitted), disc. review denied,

363 N.C. 124, 672 S.E.2d 687 (2009).

    Two people who are contemplating marriage may enter into a

valid contract before marriage with respect to the property and

property rights of either or both after marriage.                       Stewart v.

Stewart, 222 N.C. 387, 391, 23 S.E.2d 306, 308 (1942).                      We have

further explained that “[t]he term ‘antenuptial agreement’ or

‘marriage settlement’ is often applied to such agreements” and
                                            -9-
that “a valid antenuptial agreement may serve as a plea in bar

to the equitable distribution of property acquired during the

marriage[,]” pursuant to N.C. Gen. Stat. § 50-20(d).                                    Prevatte

v. Prevatte, 104 N.C. App. 777, 780-81, 411 S.E.2d 386, 388

(1991).        In other words, even though the right to equitable

distribution is a statutory property right, that “right may be

waived    by    a    complete      property       settlement            which        contains   a

general release of spousal property rights.”                              Id. at 781, 411

S.E.2d    at     388.         Husband      pleaded      as     a        bar     to     equitable

distribution of his real estate the terms of the Antenuptial.

Therefore,      the      issue    before    us     is    whether          the        Antenuptial

operated as a bar to Wife’s claim for equitable distribution of

the real estate owned solely in Husband’s name.

    Principles           of      construction        applicable               to      contracts,

generally, are applicable to premarital agreements.                                  Stewart v.

Stewart, 141 N.C. App. 236, 240, 541 S.E.2d 209, 212 (2000).

“The heart of a contract is the intention of the parties[,]” and

“[t]his intention is to be gathered from the entire instrument,

viewing it from its four corners.”                   Jones v. Palace Realty Co.,

226 N.C. 303, 305, 37 S.E.2d 906, 907 (1946).                                  “The contract

must be construed as a whole, and a paragraph or excerpt must be

interpreted         in   context     with    the        rest       of     the        agreement.”
                                            -10-
Security Nat'l Bank v. Educators Mut. Life Ins. Co., 265 N.C.

86, 93, 143 S.E.2d 270, 275 (1965) (citations omitted).                               “When

the    language       of     the     contract      is    clear        and    unambiguous,

construction of the agreement is a matter of law for the court

and the court cannot look beyond the terms of the contract to

determine the intentions of the parties.”                           Stovall v. Stovall,

205 N.C. App. 405, 410, 698 S.E.2d 680, 684 (2010).                                 “If the

words employed are capable of more than one meaning, the meaning

to be given is that which it is apparent the parties intended

them   to    have.”         Jones,    226   N.C.    at       305,    37    S.E.2d   at   907

(citation and quotation marks omitted).

       Section    I    of    the     Antenuptial        is    at    the     heart   of   the

parties’ arguments, which states

              [a]ny property, either real or personal,
              acquired   by  either   prospective  spouse,
              before or after their marriage, shall be the
              separate property of the party owning or
              obtaining the property, and the other party
              shall make no claim or demand on the
              separate   property   or    on   the  heirs,
              executors, or administrators of the owner’s
              estate, for that separate property.

(Emphasis added.)                Wife argues that the phrase “after their

marriage” in this paragraph is ambiguous, as it could mean (1)

after the marriage ended by divorce (excluding property acquired

during      marriage       and    giving    Plaintiff         a    right    to   equitable
                                           -11-
distribution in Defendant’s real property) or (2) after date of

marriage      (including      property       acquired         during       marriage       and

excluding      Plaintiff’s      right       to         equitable      distribution         of

Defendant’s real property).                Plaintiff reasons that because of

this   ambiguity,       we   should   look        to    her   trial       and   deposition

testimony along with other parts of the agreement to determine

the intent of the parties and that their intent was not to waive

equitable     distribution      of    their       property         acquired     by   either

party during the marriage.                 Plaintiff concedes, however, that

“before . . . marriage” means before the parties were married.

Therefore, we must determine the parties intention in regards to

the phrase “after marriage[.]”

       We believe that the trial court correctly interpreted the

Antenuptial to apply to property acquired by either party during

the marriage.       Looking to the “four corners” of the document, we

note   that    in   a   preamble      to    the    rest       of    the    terms     of   the

agreement, the Antenuptial states:

              The parties stipulate and recite that:

              1. Prospective Husband and Prospective Wife
              intend to be married.

              2. Prospective Husband and Prospective Wife
              are legal owners of real and personal
              property located in the State of North
              Carolina.
                                           -12-
            3. Prospective Husband and Prospective Wife
            desire to retain all property that they
            presently own, whether real or personal, as
            separate property, after solemnization of
            their marriage.

            4.   That parties wish to set forth other
            provisions relative to the manner in which
            they will conduct themselves after marriage
            and relate the business context in which
            they will operate as man and wife.


(Emphasis       added).        The   parties’          intent,      as   stated       in   the

preamble is that the agreement govern their conduct, including

the   ownership           of   property,        “after        solemnization           of   the

marriage[,]”         “after    the   marriage[,]”           and    “as   man    and    wife.”

Paragraph 3 of the Preamble makes it clear that Section I’s

“before     .    .    .    marriage”    refers         to     property       owned     before

“solemnization of their marriage[.]”                         We believe that it is

equally   clear       from     paragraph    4     of    the       Preamble     that    “after

marriage” means           while operating “as man and wife”                      or “after

solemnization of their marriage[.]”1

      Wife contends that an antenuptial agreement must expressly

mention “equitable distribution” in order to operate as a waiver



1
  An antenuptial agreement can be                      invalidated if it is the
product of undue influence, duress,                    coercion, or fraud, and if
there is a lack of full disclosure                      between the parties as to
their respective financial status.                      Howell v. Landry, 96 N.C.
App. 516, 525, 386 S.E.2d 610, 615                      (1989).   Plaintiff raised
none of these contractual defenses on                  appeal.
                                             -13-
of this right.        In Hagler v. Hagler, 319 N.C. 287, 354 S.E.2d

228 (1987), our Supreme Court held two identical releases for

the husband and wife in a separation agreement operated as a bar

to equitable distribution: “any and all other rights arising out

of the marriage relation in and to any and all property now

owned by the [“Wife,” or “Husband”] or which may be hereafter

acquired by [her or him] and further does hereby release the

right to administer upon [her or his] estate.”                        Id. at 288, 295,

254 S.E.2d at 231, 234-35.                  The agreement did not contain the

phrase    “equitable        distribution.”             Id.      However,        the   Court

analyzed the intent of the parties based on the specific terms

of the agreement and determined that they intended a waiver of

equitable distribution. Id.                    In the present case, by entering

into    the    Antenuptial,           the   parties    agreed    that      any   property

acquired      and   owned       by    either    of   them    would    be   the   separate

property      of    the     owner.          Accordingly,        Wife’s     argument     is

overruled.

                                      III. Conclusion

       The    unambiguous        language       of   the    Antenuptial     stated     that

real or personal property acquired by either party before or

after    marriage         was        separate    property,      and      this    language

supported the trial court’s findings and conclusion that the
                              -14-
Antenuptial operated as a waiver of equitable distribution of

such property in the Declaratory Judgment.     As we affirm the

Declaratory Judgment, we also affirm the conclusions based on

that Declaratory Judgment in the Consent Judgment.

    Accordingly, the trial court’s judgments are

    AFFIRMED.

    Judge HUNTER, Robert C. and Judge ERVIN concur.

    Report per Rule 30(e).
