An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-1133

                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 15 April 2014


JENESS J. CAMPBELL,
     Plaintiff,

      v.                                       Wake County
                                               No. 09 CVD 17335
MELVIN E. CAMPBELL,
     Defendant.


      Appeal by defendant from order entered 3 May 2013 by Judge

Lori G. Christian in Wake County District Court.                  Heard in the

Court of Appeals 19 February 2014.


      Kurtz & Blum, PLLC, by Lynn A. Prather, and Sandlin Family
      Law Group, by Debra A. Griffiths, for plaintiff-appellee.

      Cranfill Sumner & Hartzog LLP, by Michelle D. Connell, for
      defendant-appellant.


      BRYANT, Judge.


      The    District    Court   has   subject    matter    jurisdiction    over

claims      for   equitable      distribution      and     alimony,   and    can

incorporate those claims into a judgment for absolute divorce by

the   consent     of   both   parties.     A    separation    agreement,    once
                                     -2-
incorporated by the trial court into a divorce judgment, can be

enforced through the contempt powers of the court.

    On 31 August 2009, plaintiff Jeness J. Campbell filed for

absolute divorce from defendant Melvin E. Campbell.                    That same

day, plaintiff filed a separate action for a qualified domestic

relations   order   (“QDRO”).1        On    15    October      2009,   defendant

answered    and   filed   a   pro    se    answer     and   counterclaim     for

equitable distribution, alimony and attorneys’ fees.                    Although

defendant captioned his answer and counterclaim in response to

plaintiff’s complaint for absolute divorce, he listed on his

response the file number as being 09 CVD 173334, which does not

match the file number for either the divorce action (09 CVD

17335) or the QDRO action (09 CVS 17334).

    On 30 November 2009, plaintiff filed motions to dismiss, to

strike, and for Rule 11 sanctions, alleging that defendant’s

counterclaim was an insufficient defense to absolute divorce and

contained   irrelevant    material    meant      to   harass    plaintiff,   and

that defendant’s counterclaim was meritless because defendant

had already agreed to a mediated settlement agreement resolving



1
   Plaintiff’s QDRO action, 09 CVD 17334, sought an order
regarding a $25,000.00 lump sum distribution to defendant from
plaintiff’s Duke University retirement plan.    On 19 February
2010, the trial court issued an order granting plaintiff’s QDRO
action.
                                            -3-
all issues.      On 3 December 2009, plaintiff filed an affidavit of

judicial     assignment         and    notice       of   hearing      requesting      an

expedited hearing date for her motions to dismiss, to strike,

and for Rule 11 sanctions.

    On 3 February 2010, a memorandum of mediated settlement

agreement       was    filed.         The    settlement       agreement      contained

provisions for the sale of the marital home in Brier Creek and a

property in Kentucky; the division of bank, credit card, and

retirement      accounts;       custody     and     visitation      rights    for    the

parties’     dog,      Bella;    and     plaintiff’s        alimony    payments      and

distributive award to defendant.                  That same day, the trial court

entered a judgment for absolute divorce which incorporated the

memorandum      of    settlement       agreement     and    noted     that    with   the

exception of the pending QDRO, “[a]ll other outstanding issues

between the parties have been resolved pursuant to the mediated

agreement.”       On 15 March 2010, the trial court entered an order

dismissing       all     of      plaintiff’s         motions     and      defendant’s

counterclaims.

    On     26    March    2012,       plaintiff     filed    a   motion      to   modify

alimony and for an order to show cause.                     Plaintiff alleged that

defendant had: relinquished his rights to the family dog, Bella;

failed to abide by the trial court’s order regarding the sale of
                                             -4-
the    Kentucky       property;       experienced        an     improvement       in    his

financial situation requiring a change in plaintiff’s alimony

payments; and that defendant “has been frustrating the sale of

the marital residence so that he can remain living there rent-

free   with       Plaintiff    paying    the       entire      mortgage,    taxes,     home

owners      association        fees     and        social      country     club    dues.”

Plaintiff thereafter dismissed her motion to modify alimony.                              An

amended and supplemental motion for an order to show cause was

filed by plaintiff on 11 January 2013, and again on 22 January,

alleging defendant had committed many acts that obstructed the

sale of the marital home.

       In    the    meantime,     on    10    January        2013,    defendant        filed

motions      to    modify     alimony   and        to   show    cause     for   contempt,

alleging that plaintiff had refused to sign listing contracts

with realtors, failed to reimburse defendant for repairs to the

marital     home,     and   had   violated         defendant’s       visitation    rights

with   the    family    dog.      Defendant        further      alleged    that   because

plaintiff’s financial situation had improved while defendant’s

financial         situation     simultaneously          declined,         defendant     was

entitled to an increase in alimony.

       On 5 February 2013, plaintiff filed a motion for Rule 11

sanctions against defendant, alleging that defendant’s motions
                                             -5-
were meritless and filed to harass her.                      Defendant filed motions

to compel and for sanctions on 12 February.                            On 14 February,

plaintiff    filed     a    motion      to    dismiss       defendant’s       motions    to

compel and for sanctions and a motion for Rule 37 sanctions,

again   alleging       that      defendant’s        motions       to   compel    and    for

sanctions were frivolous and made solely for the purpose of

harassing her.

        On 18 March 2013, the trial court conducted a hearing on

all motions filed by plaintiff and defendant.                          The trial court

issued a contempt order on 2 May, holding defendant in civil

contempt    of   the    3     February       2010       order2;   denying     plaintiff’s

motions    for   Rule       11    and   Rule       37    sanctions;     and     dismissing

defendant’s motions to compel, modify alimony and for sanctions.

Defendant appeals.

                                 __________________________

2
  In holding defendant in civil contempt of the 3 February 2010
order, the trial court made findings of fact that defendant
willfully refused to sell the marital home by: failing to place
the home on the market with a reputable real estate agent;
listing the home at an unrealistic sale price; refusing to place
“for sale” signs in the yard or a lock box on the door; making
unreasonable demands and conditions on realtors wishing to show
the home to potential buyers; and failing to keep the home in a
saleable condition by not making required repairs, maintaining
the yard, and keeping the home’s temperature at a comfortable
level.   The trial court then noted that “[i]t is clear that
Defendant is willfully blocking the sale of the marital house”
and that “Defendant’s actions are willful and calculated to
ensure that the house will never sell.”
                                               -6-
      On   appeal,       defendant        argues          that:   (I)    the    trial   court

lacked subject matter jurisdiction over defendant’s claims for

alimony and equitable distribution; (II) the trial court lacked

subject    matter      jurisdiction         to    incorporate           the    memorandum    of

mediated settlement agreement into the divorce complaint; and

(III) defendant cannot be held in contempt of a void order.

                                                     I.

      Defendant first argues that the trial court lacked subject

matter jurisdiction over his claims for alimony and equitable

distribution.         We disagree.

      "[W]hether a trial court has subject matter jurisdiction is

a   question     of    law,    which      is     reviewable        on    appeal de      novo."

Yurek v. Shaffer, 198 N.C. App. 67, 75, 678 S.E.2d 738, 743

(2009) (citations omitted).

      Defendant contends that because plaintiff did not file for

equitable distribution and alimony when she filed for absolute

divorce    and        failed   to        join    defendant’s            counterclaims       for

equitable distribution and alimony to her complaint for absolute

divorce, the trial court lacked subject matter jurisdiction to

adjudicate     defendant’s       claims          for      equitable      distribution       and

alimony    when   it     ruled      on    plaintiff’s         complaint        for   absolute

divorce.     We disagree, as a review of the record indicates that
                                           -7-
defendant’s counterclaims for equitable distribution and alimony

were settled by the consent of both parties to the settlement

agreement.

      Subject       matter     jurisdiction        over     domestic       claims        is

reserved to the District Court.                  Sloan v. Sloan, 151 N.C. App.

399, 403, 566 S.E.2d 97, 100 (2002).                       In a divorce action,

either party may bring a claim for alimony                         and/or equitable

distribution.       N.C. Gen. Stat. §§ 50-16.3(A)(a), 21(a) (2013).

      Plaintiff filed separate actions for absolute divorce and a

QDRO.      Defendant        counterclaimed        for   equitable       distribution,

alimony and attorneys’ fees; the counterclaim contained a file

number that did not match the file number of either action, but

was otherwise tailored to respond to plaintiff’s complaint for

absolute divorce.            In its 12 February 2010 order dismissing

defendant’s        counterclaims,          the     trial        court   noted        that

“Defendant’s       answer    had    the    wrong    case    number,      but    it   was

clearly meant to be an answer to the Absolute Divorce Complaint

by   its   contents,”       and    that   “Defendant       and    Plaintiff     .    .   .

consented     to     integrate       the     parties’       mediated       settlement

agreement     for    Equitable       Distribution         and    Alimony    with      the

judgment for absolute divorce.”                  The trial court also noted in

its judgment for absolute divorce that “Defendant had filed his
                                         -8-
own   answer,”        indicating       that     the    trial          court        considered

defendant’s counterclaims for equitable distribution and alimony

at the time it entered judgment as to the divorce.                                  As such,

defendant’s counterclaims for equitable distribution and alimony

were considered in conjunction with plaintiff’s complaint for

absolute divorce by the trial court.                   Moreover, we note that as

defendant’s counterclaim was filed prior to the 3 February 2010

order granting plaintiff’s complaint for absolute divorce on 15

October 2009, the trial court had jurisdiction over defendant’s

counterclaim for equitable distribution pursuant to N.C. Gen.

Stat. §      50-11(e) (2013).           See Stark v. Ratashara-Stark, No.

COA07-665,     2008    N.C.     App.   LEXIS     41,       at    *5     (Jan.      15,   2008)

(holding that where the plaintiff’s claim “clearly preserves the

equitable     distribution       claim    prior       to    the       .    .   .    entry   of

judgment of absolute divorce, the trial court had jurisdiction

to    hear    plaintiff’s        claim    for       equitable             distribution.”).

Defendant’s argument is overruled.

                                              II.

      Defendant       next    contends    the    trial          court      lacked    subject

matter jurisdiction to incorporate the settlement agreement into

the divorce order.           We disagree.
                                               -9-
      "A    universal           principle     as     old    as    the    law       is    that    the

proceedings       of    a       court    without      jurisdiction            of   the    subject

matter are a nullity."                 Burgess v. Gibbs, 262 N.C. 462, 465, 137

S.E.2d 806, 808 (1964) (citation omitted).                             "[O]ur Supreme Court

[has]      fashioned        a    'one-size         fits    all'        rule    applicable        to

incorporated       settlement           agreements         in    the     area      of    domestic

law," Fucito v. Francis, 175 N.C. App. 144, 148, 622 S.E.2d 660,

663   (2005),      which         states      that    "[a]ll        separation           agreements

approved     by   the       court       as   judgments      of     the       court      [after   11

January      1983]      will       be     treated      .    .      .    as     court      ordered

judgments."       Walters v. Walters, 307 N.C. 381, 386, 298 S.E.2d

338, 342 (1983).                “[C]ourt ordered separation agreements, as

consent      judgments,          are     modifiable,        and        enforceable        by     the

contempt powers of the court, in the same manner as any other

judgment     in   a    domestic         relations         case."       Id.         A    separation

agreement can be kept separate and under the laws of contract

only where the parties agree to not submit their separation

agreement to the trial court.                  Id.

      Defendant contends the trial court lacked subject matter

jurisdiction to incorporate the settlement agreement into the

absolute divorce because the agreement lacks any indication that

it was to be incorporated into the divorce judgment, and the
                                            -10-
trial court failed to make any findings of fact that the parties

stipulated to the incorporation.                    However, the record does not

support defendant’s contention.                   In its 3 February 2010 judgment

for    absolute        divorce,       the     trial       court       noted     that     “all

outstanding       issues       between      the     parties       have     been    resolved

pursuant to a mediated agreement by both parties.”                                The trial

court then made the following handwritten conclusion of law: “4.

The parties[‘] mediated Settlement Agreement dated February 3,

2009   and    contain[ing]          the    parties[‘]         separation      agreement    is

incorporated by reference.”                The settlement agreement, which was

signed by defendant and his counsel, clearly states that “5. The

parties      waive     the     inclusion      of        any    findings    of     fact    and

conclusions       of    law    in    the    formal       judgment/order         which    will

memorialize this Memorandum.”                 Moreover, in his 10 January 2013

motions for an order to show cause and modify alimony, defendant

acknowledged that the “mediated agreement including provisions

for    equitable       distribution         and    alimony      was    executed     by    the

parties      on   February      3,    2009”       and    that    “Said     agreement      was

incorporated into the parties’ divorce by agreement on February

3, 2010 . . . .”              As such, defendant agreed in the settlement

agreement to be bound by its terms, including its incorporation

into the divorce judgment.
                                              -11-
       Additional evidence supports this incorporation, as in its

12    March    2013    order       dismissing        defendant’s     counterclaims      and

plaintiff’s motions, the trial court made the following finding

of fact: “Defendant and Plaintiff . . . consented to integrate

the    parties’        mediated       settlement            agreement     for    Equitable

Distribution          and     Alimony     with        the     judgment     for    absolute

divorce.”       The trial court then made the following conclusion of

law:    “3.    That     the    parties’       mediated        agreement    settling     the

matters of alimony and equitable distribution shall be attached

to and incorporated with the parties’ Divorce Judgment.”                                We

further       note    that    in    the   3    February       2010   hearing     regarding

plaintiff’s          complaint        for       absolute         divorce,        defendant

acknowledged that he had signed the settlement agreement and

that    the    agreement       “represents       the        entire   agreement     of   the

parties with respect to the issues addressed herein.”                            Defendant

also did not object to the trial court’s incorporation of the

settlement agreement into the judgment for absolute divorce at

the time the trial court proposed to do so.                               “[T]here is a

presumption that provisions in a separation agreement or consent

judgment made a part of the court's order are separable . . . .

However, where the parties include unequivocal integration . . .

clauses in the agreement, this language governs.”                                Hayes v.
                                        -12-
Hayes,   100    N.C.   App.    138,     147,    394    S.E.2d       675,    680     (1990)

(citations      omitted).          As   the     language      of     the        settlement

agreement    clearly    indicates       an    intention      by     both    parties      to

integrate this agreement into the divorce judgment, the trial

court    had      subject      matter         jurisdiction          to      make        this

incorporation.      See id. at 149, 394 S.E.2d at 681 (“Clearly, the

parties presented their Agreement to the court for its approval,

and   this     submission     is    sufficient        to    bring    it     within      the

principles applied in this opinion.”). Defendant’s argument is

overruled.

                                              III.

      Thirdly,     defendant       argues      that    he    cannot        be    held    in

contempt of court because the 3 February 2010 order is void.                             We

disagree.

      “As an order of the court, the court adopted separation

agreement is enforceable through the court's contempt powers.

This is true for all the provisions of the agreement since it is

the court's order and not the parties' agreement which is being

enforced.”      Walters, 307 N.C. at 385, 298 S.E.2d at 341.

             [A] party to a consent order like the one
             before us may move for the trial court to
             exercise its contempt powers to enforce that
             consent order. Contempt, however, may only
             be found upon a showing that the party in
             noncompliance with the consent order acted
                                       -13-
            willfully, and was capable of complying with
            the consent order.

Holden v. Holden, ___ N.C. App. ___, ___, 715 S.E.2d 201, 208

(2011).

    As     discussed     in   Issues   I    and   II,   the   trial   court    had

subject matter jurisdiction to issue the 3 February 2010 order;

therefore, the order was not void.                 In holding defendant in

contempt of the 3 February 2010 order, the trial court made

numerous    findings     of   fact   that     defendant   acted   willfully     in

violating the terms of the order and that defendant had the

financial resources available to comply with the order.                        The

trial     court   then    made   the       following    conclusions    of     law:

“Defendant has willfully refused to comply with the February 3,

2010 Order[;]” “Defendant is in civil contempt of the February

3, 2010 Order[;]” and “Further violation of the . . . order . .

. shall result in Defendant being ordered into custody of the

Wake County Jail by this Court.”              As such, the trial court made

the appropriate findings of fact and conclusions of law required

to hold defendant in contempt.                Defendant’s final argument is

overruled.

    Affirmed.

    Judges STEPHENS and DILLON concur.

    Report per Rule 30(e).
-14-
