                              NO. COA13-986

                   NORTH CAROLINA COURT OF APPEALS

                           Filed: 6 May 2014


SUZIE JANE BURAKOWSKI,
     Plaintiff,

    v.                                 Gates County
                                       No. 10-CVD-37
STEVEN ALLEN BURAKOWSKI,
     Defendant.


    Appeal by defendant from contempt order entered 25 March

2013 by Judge Eula E. Reid in District Court, Gates County.

Heard in the Court of Appeals 9 January 2014.


    Mitchell S. McLean, for plaintiff-appellee.

    Davis Law Office, by Mary Elizabeth Davis, for defendant-
    appellant.


    STROUD, Judge.


    Defendant   appeals    order   allowing   plaintiff’s   motion   for

contempt,   awarding   plaintiff    certain   annuity   payments,    and

denying defendant’s motion for sanctions.          For the following

reasons, we reverse and remand in part.

                             I.     Background

    In 2008, plaintiff and defendant were divorced in Kentucky

by a decree of dissolution of marriage which incorporated a

separation agreement.      The separation agreement, entered on 8
                                   -2-
October 2008,    included a provision regarding the division of

defendant’s retirement benefits as follows:

           Parties agree that wife is entitled to one
           half of the husband’s retirement account,
           which specifically is TSP and FERS accounts,
           as of the date of the entrance of the final
           decree of dissolution in this case.     Wife
           shall execute any orders as directed by the
           Court to effectuate said division including
           but not limited to any QDROs.1

Thereafter, on 19 November 2008, the parties entered into an

Amended   Separation   Agreement   (“Amended   Agreement”)   which   was

also incorporated into the decree of dissolution of marriage.

The Amended Agreement further addressed defendant’s retirement

benefits as follows:

                 The parties agree that wife is entitled
           to one half (½) of husband’s Retirement
           Accounts, more specifically his TSP account
           and FERS account. His TSP account shall be
           divided, with wife to receive ½ the value
           thereof as of the date of the entrance of
           the Final Decree of Dissolution in this
           case.     Wife shall execute any orders as
           directed by the Court to effectuate said
           division, including but not limited to any
           Qualified Domestic Relations Order (QDRO).
           Husband’s FERS account shall be divided,
           with wife to receive ½ of the amount in said
           account as of the date of the entrance of

1
   The original agreement is not in our record but this provision
was read out loud at a hearing by defendant’s attorney and
plaintiff testified that this was what the separation agreement
stated.   There is no dispute about this provision, which was
later amended.
                                        -3-
            the Final Decree in this case. Both parties
            understand    that   wife  will   not receive
            payment   of    this   amount   until husband
            retires.     Wife shall execute any Orders
            necessary to effectuate division of the
            same.    Wife shall also receive ½ of the
            supplemental annuity to be received by
            husband from the date of his retirement or
            when he reaches age 57, whichever shall come
            earlier[.]

(Emphasis    added.)          Thus,    the      Amended    Agreement     provided

additional    details    as     to    the     portions    of    the   defendant’s

retirement benefits that plaintiff would receive and how the

distributions would be accomplished.

    In 2010, a North Carolina trial court entered a consent

order   which   domesticated          the     Kentucky    modified     decree   of

dissolution of marriage making it “enforceable as a valid Order

of the State of North Carolina, so the terms of the Amended

Agreement became enforceable as a court order.                   Later in 20102,

plaintiff    filed   a   verified       “MOTION     IN    THE   CAUSE    AND    FOR

CONTEMPT” (“2010 Motion”) seeking to hold defendant in contempt

under the terms of the Amended Agreement regarding her health



2
  Both parties state that plaintiff’s motion was made in 2011;
however, the file stamp is illegible and the date written in by
plaintiff’s attorney indicates the motion was made in 2010. As
such, we will refer to this motion as the 2010 Motion noting
that whether it was filed in 2010 or 2011 is irrelevant to the
issues on appeal. There is no doubt that it preceded the motion
and order at issue here.
                                    -4-
insurance benefits, which are not at issue in this appeal, and

also seeking “clarification” of the provisions of the Amended

Agreement   as   to   defendant’s   retirement   benefits.     Plaintiff

alleged:

                 7.   That     the     Amended    Separation
            Agreement provided for the plaintiff to
            receive one half of the defendant’s FERS
            retirement benefits, upon his retirement. A
            problem has arisen regarding the Office Of
            Personal Management’s interpretation of the
            provision    of    the     Amended    Separation
            Agreement that divides defendant’s FERS
            retirement annuity. The OPM has interpreted
            the   wording   of   the    Amended   Separation
            Agreement contrary to the clear intent of
            the parties, because the term “retirement
            account” was used rather than the term
            “retirement annuity.”       The intent of the
            parties was clearly for the plaintiff to
            receive one half of the monthly annuity
            payments that defendant is entitled to
            receive, pursuant to his FERS retirement
            benefit/annuity.        However,   because   the
            Amended Separation Agreement did not us[e]
            the   specific   word     “annuity”,   OPM   has
            construed the Amended Separation Agreement
            as only giving her a one half interest in
            the set contributions that were made to the
            FERS account after the date of the October
            10, 2008 Decree, which was only for a one
            year   period,   as    indicated   in   document
            attached hereto as “Exhibit 2”.

                 8.   That the court should clarify the
            wording of the Amended Separation Agreement
            to conform with the clear intentions of the
            parties and should specify that the OPM
            shall divide and apportion the defendant’s
            monthly FERS retirement annuity payment so
            that the plaintiff shall begin receiving one
                              -5-
         half of these monthly annuity payments. The
         court should also require that the defendant
         reimburse the plaintiff for the plaintiff’s
         one half share of each monthly FERS annuity
         payment that she has not received since the
         date   the   defendant  retired   and   began
         receiving his FERS annuity monthly payment.

         . . . .

              11. That the plaintiff has requested
         and demanded of the defendant that he comply
         with the health insurance provisions of the
         Amended    Separation   Agreement   and  has
         requested and demanded of the defendant that
         he cooperate in amending the prior Amended
         Separation    Agreement   to   specify  that
         plaintiff is entitled to receive one half of
         the defendant’s monthly FERS retirement
         annuity.   However, the defendant has failed
         and refused to abide or comply with these
         requests and demands, which has required the
         plaintiff to initiate this Motion to enforce
         the defendant’s compliance with the health
         insurance provision and to clarify the FERS
         annuity provision, to conform with the clear
         intent of the parties.

    Plaintiff then specifically requested that the trial court

“clarif[y]” the Amended Agreement to provide specifically that

she would receive one half of the defendant’s monthly “FERS

retirement annuity payment” and that OPM be ordered to pay this

directly to plaintiff:

              4.   That the retirement provision of
         the   Amended    Separation  Agreement   be
         clarified to specify that the plaintiff is
         entitled   to  receive   one half   of  the
         defendant’s monthly FERS retirement annuity
         payment, and to order the OPM to begin
                                   -6-
             directing one half of each monthly annuity
             payment to the plaintiff.         Also, the
             defendant   be  ordered  to   reimburse  the
             plaintiff for the plaintiff’s one half share
             of each monthly FERS retirement annuity
             payment that the defendant has received
             since his retirement.

In   other     words,   because    the   Amended    Agreement   referred

specifically     only   to   the   defendant’s     “FERS   account”   and

“supplemental annuity[,]” the OPM had taken the position that

the Amended Agreement did not permit it to pay the basic annuity

benefits to plaintiff.       Plaintiff testified at the hearing on

her 2010 Motion that defendant had already retired and one-half

of his TSP or Thrift Savings Plan, had been paid to her in the

lump sum of $119,030.00, and an additional $7,400.00 had been

paid over the course of six months as her one-half interest from

the FERS account.3      However, plaintiff was not being paid a one-

half share of the basic annuity, so she requested the trial

court to “clarif[y]” that the parties actually meant for the

term “FERS account” to include the basic annuity so that the OPM



3
  The parties’ use of informal terminology to identify the TSP
retirement account, FERS retirement account, and the two FERS
annuities, in the Amended Agreement, before the trial court, and
in their briefs before this Court has made it challenging to
determine at times exactly which asset the parties are referring
to, but ultimately the accounts and annuities as identified in
this opinion are consistent with those found by the trial court,
and these particular findings are not challenged.
                                       -7-
would   pay    one-half    of    the   basic    annuity   benefits   to   her.

Plaintiff also requested that defendant be required to pay to

her the arrearages of her one-half of the basic annuity payments

that had accrued up to that time.

    In 2011, the trial court entered an order (“2011 Order”)

after a hearing on plaintiff’s 2010 Motion and found:

                   11. That    the   defendant    currently
              receives   a  gross  regular   monthly   FERS
              annuity of $2,327.00.   He also receives an
              additional FERS supplemental annuity of
              $915.00 per month.    The defendant is also
              gainfully employed at Fort Lee and testified
              that he earns $80,000.00 per year from his
              employment, and began his employment in
              June, 2010.

                  . . . .

                   22. That the plaintiff contends that
              the Amended Separation Agreement should be
              modified   and  clarified   to  require  the
              defendant to pay her ½ of his FERS regular
              retirement benefits.     However, the court
              deems that the Amended Separation Agreement
              is unambiguous in regards to the plaintiff’s
              right concerning the defendant’s retirement
              benefits and will not modify or supplement
              the provisions contained therein.

                   23. That the specific wording of the
              Amended Separation Agreement, as agreed to
              and admitted by each party in open court,
              provides that the plaintiff is entitled to
              receive ½ of the defendant’s monthly FERS
              supplemental annuity payments, less ½ of the
              taxes.

                  24.     That    the        defendant    started
                     -8-
receiving his monthly FERS supplemental
annuity payments on March 1, 2010.

     25. That     the   defendant    currently
receives the sum of $915.00 per month as
FERS supplemental annuity payments.        The
amount of taxes are deducted is $269.60 per
month.    Therefore, the plaintiff’s net ½
share of the current monthly supplemental
annuity payment is $322.70.       For the 13
months that the defendant received this
supplemental annuity payment up to the March
25, 2011 court date, the total net payment
due to the plaintiff from the defendant, for
her   share   of  the   supplemental   annuity
payments, is $4,195.10.

     26. That the total amount of the
plaintiff’s share of the defendant’s monthly
supplemental annuity payments, as of July
31, 2011, will be $5,485.90.

     27. That   the   defendant  should   be
ordered to directly pay the plaintiff, each
month, her ½ share of his supplemental
annuity payment, less taxes, the current net
monthly amount due plaintiff being $322.70,
by the 5th day of each month, beginning
August 5, 2011.

     28. That the defendant has the present
financial ability to pay the plaintiff the
reimbursement/arrearage that he owes her for
her ½ share of his supplemental annuity
payments, dating back to March 1, 2010. The
amount of the arrearage/reimbursement owed
by the defendant to the plaintiff, through
July 31, 2011, is $5,485.90.   The defendant
has the present financial ability to pay to
the plaintiff, provided that he is allowed
to pay this reimbursement/arrearage amount
in 6 equal monthly installments, with the
first installment being due and payable by
September 5, 2011.
                                    -9-



(Emphasis added.)

    The trial court concluded that plaintiff would receive one-

half of the supplemental annuity payments, past and future:

                 16. That the plaintiff’s share of the
            defendant’s    monthly   FERS    supplemental
            annuity payments that he has received since
            March 1, 2010, through the March 25, 2011
            court date, is $4,195.10.   The total amount
            of plaintiff’s share of the defendant’s
            monthly    supplemental   annuity    payments
            through July 31, 2011, will be $5,485.90.

                 17. That the defendant has the present
            financial ability to reimburse the plaintiff
            for her ½ share of the supplemental annuity
            payments defendant has received since March
            1, 2010, provided that he is allowed to pay
            this reimbursement/arrearage total in 6
            equal installments, payable monthly, with
            the first installment payment being due
            September 5, 2011.

(Emphasis added.)

    The trial court thus ordered payment of the supplemental

annuity     benefits,   including   arrearages   as   well   as   future

payments:

                 9.   . . . The total supplemental
            annuity reimbursement that the defendant
            owes the plaintiff, through July 31, 2011,
            is      $5,485.90.             The       total
            arrearage/reimbursement that the defendant
            owes the plaintiff, through July 31, 2011,
            is   $13,041.56.      Defendant    shall   pay
            plaintiff the full sum of $13,041.56 in six
            monthly installments, beginning with a first
                                     -10-
            monthly installment due September 5, 2011,
            in the amount of $2,173.59.     The defendant
            shall make an equal payment of $2,173.59 to
            the plaintiff on October 5, 2011, November
            5, 2011, December 5, 2011, and January 5,
            2012.    The defendant shall make a final
            arrearage installment payment of $2,173.61
            to plaintiff on February 5, 2012.

                 10. That willful violation of the
            provisions of this Order shall be punishable
            by the contempt of court sanctions of this
            court.

(Emphasis added.) In sum, the 2011 Order did not “clarif[y]” the

Amended    Agreement    as     plaintiff    requested   nor   did    it   order

defendant to pay any basic annuity payments, but instead only

ordered payments as to the “supplemental annuity[.]”                 (Emphasis

added.)    The record does not indicate that either party appealed

from this order.

    In 2012, plaintiff filed a verified “MOTION FOR CONTEMPT”

(“2012    Motion”)     which    requested    that   defendant   be    held   in

contempt for failure to pay her one-half of his basic annuity

payments under the Amended Agreement, alleging:

                 6.   That the defendant should be found
            to be in willful contempt of court for his
            willful violation of the provisions of the
            aforesaid   Amended   Separation   Agreement,
            which has been incorporated into the Divorce
            Decree entered in this cause, in that:
                 A.   The Amended Separation Agreement
                 provided for the plaintiff to receive
                 one   half  of   the  defendant’s   FERS
                 retirement     account,     upon     his
                 -11-
retirement.
B.   The defendant’s FERS retirement
account    encompasses      the    retirement
annuity that provides defendant with
monthly annuity payments.
C.   The intent of the parties was
clearly for the plaintiff to receive
one   half    of   the    monthly      annuity
payments that defendant is entitled to
receive,     pursuant      to     his     FERS
retirement account.
D.   The defendant has willfully failed
and refused to pay plaintiff one half
of   his   monthly    retirement      annuity
payment    since    his    retirement,      as
required    by   the    aforesaid     Amended
Separation Agreement, despite demand
from the plaintiff.
E.   The     only     portion       of     the
defendant’s    FERS   retirement      account
that plaintiff has received is one half
of the direct contributions that were
made by the defendant into his FERS
account after the date of the October
10, 2008 Decree, and prior to the
retirement date of the defendant.
F.   The    specific     wording     of    the
Amended Separation Agreement, that was
incorporated into the October 10, 2008
Decree, provided for the plaintiff to
receive one half of the defendant’s
“retirement account”, not just one half
of   the    direct    contributions       made
between October 10, 2008 and the date
of the defendant’s retirement.             The
said Amended Separation Agreement, as
incorporated into the Decree, required
the defendant to provide plaintiff with
one   half   of   his    full     “retirement
account”     upon     retirement,        which
emcompasses and includes the monthly
FERS     retirement      annuity      payment
received by the defendant.
G.   The    purposes     of     the   Amended
                     -12-
    Separation    Agreement    can    still   be
    accomplished by the court entering an
    Order finding the defendant to be in
    willful contempt of court and imposing
    such sanctions against the defendant as
    deemed appropriate.
    H.   An appropriate sanction against
    the defendant for his willful violation
    of   the   provisions   of    the    Amended
    Separation    Agreement,     due    to   his
    willful failure and refusal to provide
    the plaintiff with one half of his FERS
    retirement account since his date of
    retirement, would be for the court to
    specifically order the defendant to do
    the following:
         1.    Order    the     defendant     to
         reimburse     the    plaintiff      for
         plaintiff’s one half share of each
         monthly FERS annuity payment that
         he has received since the date the
         defendant     retired     and     began
         receiving his FERS annuity monthly
         payment.
         2.    Order    the     defendant     to
         directly forward the plaintiff her
         one half share of each prospective
         monthly FERS annuity payment that
         he receives.
         3.    Order the defendant to pay
         the    plaintiff     an     award    of
         reasonable     attorney      fees    to
         reimburse her for her costs and
         attorney      fees     incurred      in
         connection with the enforcement of
         the retirement account provisions
         of      the     aforesaid       Amended
         Separation Agreement and Decree.

     7.    That   the     Amended  Separation
Agreement had a “default” provision that
required that in the event either party
defaults in or breaches any of his or her
respective    obligations    and  duties   as
                    -13-
contained in the Agreement, the defaulting
or breaching party shall be responsible for
and pay the injured party, in addition to
such damages as any court may award, all of
his or her attorney fees, court costs and
other related expenses incurred to enforce
the provisions contained in the Amended
Separation Agreement against the defaulting
party.

     8.    That the defendant has defaulted
on his obligations pursuant to the Amended
Separation Agreement by his willful failure
to abide and comply with the retirement
account provisions of said Agreement, by his
failure   and    refusal   to  separate   and
apportion the plaintiff’s one half of his
monthly FERS retirement annuity payment to
plaintiff.    Therefore, the defendant should
be required to reimburse the plaintiff for
all of her attorney fees, court costs and
other related expenses connected with this
proceeding.

     9.   That the plaintiff has requested
and demanded of the defendant that he comply
with the retirement account provisions of
the Amended Separation Agreement and has
requested and demanded of the defendant that
he provide her with her one half share of
his monthly FERS retirement annuity payment.
However,   the  defendant   has  failed  and
refused to abide or comply with these
requests and demands, which has required
plaintiff to initiate this Motion to enforce
the   defendant’s    compliance   with   the
retirement account provisions and to secure
plaintiff’s receipt of her one half share of
the defendant’s monthly FERS retirement
annuity payment, retroactive to the date of
the defendant’s retirement.

Plaintiff requested that defendant be held
in contempt “for his willful violation of
                                  -14-
          the provisions of the aforesaid Amended
          Separation    Agreement”   and    that    he be
          requiredin    order   to   purge    himself  of
          contempt, to do the following:
               A.    Reimburse the plaintiff for her
               one half share of each monthly FERS
               retirement annuity payment that the
               defendant has received since his date
               of retirement.
               B.    The   defendant   be    required  to
               henceforth directly pay plaintiff her
               one half share of each monthly FERS
               retirement annuity payment         that he
               receives.
               C.    The defendant be required, in
               order to purge himself of contempt, to
               pay    the    plaintiff    an    award  of
               reasonable attorney fees to defray her
               costs and attorney fees incurred in
               connection with this Motion, consistent
               with the “default” provision of the
               Amended     Separation    Agreement,    as
               incorporated into the said Decree.

Thus, plaintiff again requested one half of defendant’s basic

annuity   payment,   based   on   the     provisions    of    the    Amended

Agreement.    Plaintiff’s    motion     was   not   based   upon    the   2011

Order, nor did it mention this order in which the trial court

had already denied this same substantive relief.

    Defendant responded to plaintiff’s 2012 Motion with “NOTICE

AND MOTION FOR RULE 11 SANCTIONS” arguing that

          Plaintiff’s current Motion for Contempt is
          barred by collateral estoppel and/or Res
          Judicata, said matter having been subject to
          previous litigation . . . [in] 2011.     The
          matters raised in Plaintiff’s Motion are
          substantially identical to matters ruled
                                      -15-
            upon by the . . . [trial court’s 2011
            Order].     Defendant avers that Plaintiff
            should be responsible for his attorneys fees
            in defending against her currently pending
            Motion.
                 WHEREFORE,     Defendant    respectfully
            requests   that   this  Court  dismiss   with
            prejudice Plaintiff’s Motion and the Order
            to Show Cause set for . . . 2012.

    On       25     March     2013,    the        trial     court     entered     a

“CONTEMPT    ORDER”    (“2013     Order”)    finding      defendant    in   willful

contempt    based     on    his   failure    to    comply    with     the   Amended

Separation    Agreement, for the following reasons:

                    A.    The Amended Separation Agreement
                    provided for the plaintiff to receive
                    one    half   of   the   defendant’s   FERS
                    retirement       accounts,     upon     his
                    retirement.
                    B.    Based upon the testimony of the
                    plaintiff and defendant at trial, it
                    was clear understanding of each party
                    that the FERS accounts included the
                    defendant’s basic annuity payments as
                    well    as    the   supplemental    annuity
                    payments.
                    C.    Based upon the Amended Separation
                    Agreement and the understanding of each
                    party, as testified to at trial, the
                    plaintiff was to receive from the
                    defendant one half of the monthly FERS
                    basic     annuity    payments   that    the
                    defendant received.
                    D.    Despite the provisions of the
                    Amended Separation Agreement, and the
                    understanding of the defendant that the
                    plaintiff was to receive one half of
                    his monthly FERS basic annuity, he has
                    failed and refused to pay plaintiff one
                    half of his monthly FERS basic annuity
                -16-
payment since his retirement, despite
demand from the plaintiff that he do
so.
E.    The plaintiff has received one
half of the direct contributions that
were made by the defendant into his
FERS accounts after the date of the
October 10, 2008 Decree, and prior to
the retirement date of the defendant,
and one half of the FERS supplemental
annuity, per prior Order of this court
entered March 25, 2011[.]
F.    The   specific     wording   of   the
Amended Separation Agreement, that was
incorporated into the October 10, 2008
Decree, provided for the plaintiff to
receive one half of the defendant’s
“retirement accounts”, not just one
half of the direct contributions made
between October 10, 2008 and the date
of the defendant’s retirement.          The
said Amended Separation Agreement, as
incorporated into the Decree, required
the defendant to provide plaintiff with
one    half  of    his   full   “retirement
accounts”     upon     retirement,    which
encompasses and includes the monthly
FERS basic annuity payments received by
the defendant.
G.    The defendant began receiving his
monthly FERS basic annuity payments on
March 1, 2010 and has continued to
receive     these      monthly    payments.
Plaintiff was entitled to receive one
half of the defendant’s monthly FERS
basic annuity payments from the March
1, 2010 date that the defendant began
receiving these payments; however, the
defendant     has    not    provided    the
plaintiff with any portion of the
monthly FERS basic annuity payments
that he has received since March 1,
2010.
H.    The defendant has received a gross
                     -17-
    monthly basic FERS annuity payment of
    $2,327.00.    The plaintiff is entitled
    to one half of each monthly payment,
    related back to March 1, 2010, when the
    defendant began receiving his monthly
    FERS basic annuity payments.
    I.   The defendant willfully failed and
    refused to abide by the terms of the
    Amended Separation Agreement by failing
    and refusing to pay the plaintiff her
    one half portion of his monthly FERS
    basic annuity payments that he has
    received since March 1, 2010.
    J.   The plaintiff has requested and
    demanded of the defendant that he
    comply with the retirement account
    provision of the Amended Separation
    Agreement    and    has     requested    and
    demanded of the defendant that he
    provide her with her one half share of
    his   monthly    FERS    basic    retirement
    annuity payments.         However, despite
    these requests, and the defendant’s
    knowledge that the monthly FERS basic
    annuity payments were included in, and
    a part of, his FERS accounts that the
    plaintiff was entitled to receive one
    half of, he failed and refused to pay
    her any portion of the monthly basic
    annuity payments since March 1, 2010,
    thereby requiring the plaintiff to
    initiate this motion to enforce the
    defendant’s compliance.
    K.   The    purpose     of    the    Amended
    Separation    Agreement     can   still   be
    accomplished by the court entering an
    Order finding the defendant to be in
    willful contempt of court and imposing
    the sanctions against the defendant as
    set forth in the Decree of this Order.

     9.   That the defendant has the current
financial ability to pay the plaintiff one
half of his monthly FERS basic annuity
                    -18-
payments and has the present financial
ability to reimburse the plaintiff for her
share of the past due basic annuity payments
that he failed and refused to pay her since
March 1, 2010, based upon the repayment
schedule as set forth in the Decree of this
Order.

     10. That the defendant receives a
gross monthly basic FERS annuity payment of
$2,327.00.   He also receives an additional
monthly FERS supplemental annuity payment of
$915.00, but of this amount he pays $322.70
per month to the plaintiff, pursuant to the
prior Order of this court. The defendant is
also gainfully employed and earns an annual
income of approximately $80,000.00 per year.

     11. That     an  appropriate   sanction
against   the  defendant  for   his  willful
violation of the provisions of the Amended
Separation Agreement, due to his willful
failure and refusal to pay the plaintiff her
one half share of his monthly FERS basic
annuity since the date of his retirement,
would be for the defendant to directly pay
the plaintiff for her one half share of each
prospective   monthly  FERS   basic  annuity
payment that he receives, within five days
of the date that he receives each monthly
payment.

     12. That   an   additional   appropriate
sanction against the defendant for his
willful violation of the provisions of the
Amended Separation Agreement would be for
the   court  to  order   the   defendant   to
reimburse the plaintiff for her one half
share of each monthly FERS basic annuity
payment that he has received since the
defendant began receiving his payments on
March 1, 2010, pursuant to the repayment
schedule as set forth in the Decree of this
Order.
                     -19-


     13. That the defendant has received
his $2,327.00 per month FERS basic annuity
payment   since    March   1,    2010.      The
plaintiff’s one half share of each of these
monthly payments is $1,163.50.      As of April
30, 2013, the defendant will owe the
plaintiff an arrearage of $45,376.50 for the
plaintiff’s    one    half    share    of   the
defendant’s   monthly    FERS   basic   annuity
payments since March 1, 2010.

     14. That as a sanction against the
defendant for his willful violation of the
provisions   of    the   Amended   Separation
Agreement, he should be required to directly
pay the plaintiff the sum of $500.00 per
month, beginning May 1, 2013, to be applied
toward   the    defendant’s   arrearage,   in
addition to the $1,163.50 that the defendant
is to pay to the plaintiff each month for
her one half share of the ongoing monthly
FERS basic annuity payments.

     15. That the defendant has the present
financial ability to pay the plaintiff the
sum of $500.00 per month to be applied
toward his aforesaid arrearage owed to the
plaintiff, and has the present financial
ability to pay the plaintiff the sum of
$1,163.50 per month, as plaintiff’s one half
share of his ongoing monthly FERS basic
annuity payments.

     16. That the plaintiff has waived and
abandoned her claim against the defendant
for attorney fees in this proceeding.

     17. That the defendant’s Motion For
Sanctions should be denied in that the prior
Order of this court did not serve as res
judicata for the issues determined in this
proceeding. The issue of whether or not the
plaintiff is entitled to receive one half of
                           -20-
    the defendant’s monthly FERS basic annuity
    was not fully litigated and decided at the
    prior hearing in this cause on March 25,
    2011.

The trial court concluded:

         3.    That the defendant is in willful
    contempt of court for his willful violation
    of the provisions of the aforesaid Amended
    Separation    Agreement,  which   has   been
    incorporated into the Divorce Decree entered
    in this cause, due to his willful failure to
    pay the plaintiff her one half share of his
    monthly FERS basic annuity payments that he
    has received since March 1, 2010.

         4.    That the purposes of the Amended
    Separation     Agreement   can    still   be
    accomplished by the court entering an Order
    finding the litigated or decided as a result
    of the court’s prior ruling in the hearing
    in this matter on March 25, 2011.

The trial court ordered:

         1.   That the defendant is in willful
    contempt   of    court   for   his   willful
    noncompliance with the provisions of the
    Amended Separation Agreement, due to his
    willful failure to pay the plaintiff her one
    half share of his monthly FERS basic annuity
    payments that he has received since March 1,
    2010.

         2.   That as a sanction against the
    defendant, in order for him to purge himself
    of contempt, he shall pay directly to the
    plaintiff one half of his gross monthly FERS
    basic annuity payments within five days of
    the date that he receives each payment. The
    defendant’s initial payment to the plaintiff
    shall be paid on or before five days from
    the date he receives his FERS basic annuity
                    -21-
payment for May, 2013, and he shall continue
to pay the plaintiff her one half share of
each basic annuity payment within five days
of the date he receives each monthly payment
thereafter.

     3.   That the current monthly amount
that the defendant shall pay the plaintiff,
as the plaintiff’s one half share of
defendant’s   monthly FERS     basic annuity,
shall be $1,163.50.     However, said monthly
payment    shall    increase     or   decrease
accordingly   due    to   any   increases   or
decreases in the monthly FERS basic annuity
payments that the defendant receives.

     4.   That as a further sanction against
the defendant, in order for him to purge
himself of contempt, he shall pay the
plaintiff the sum of $45,376.50, which
represents the plaintiff’s one half share of
the defendant’s monthly FERS basic annuity
payments that he has received since March 1,
2010 through April 30, 2013.   The defendant
shall pay this arrearage directly to the
plaintiff at the rate of $500.00 per month,
until the full arrearage has been paid. The
initial $500.00 monthly arrearage payment
shall be due and payable from the defendant
to the plaintiff on or before May 1, 2013
with an equal $500.00 arrearage payment
being due on or before the first day of each
month thereafter, until the full $45,376.50
arrearage has been paid.

     5.   That the plaintiff’s claim against
the defendant for attorney fees in this
proceeding has been waived and abandoned.

     6.   That the defendant’s Motion For
Sanctions against the plaintiff is denied.

     7.   That willful violation of the
provisions of this Order shall be punishable
                                        -22-
             by the contempt of court sanctions of this
             court.

                  8.   That this cause is retained by the
             court for such other and further Orders as
             may be deemed just and proper.

(Emphasis added.)        Thus, based upon the Amended Agreement, the

trial court ordered defendant be held in contempt for failing to

pay   plaintiff    one-half      of    payments    received    from    the   basic

annuity since his retirement, ordered defendant to begin paying

plaintiff     one-half     of    his    basic     annuity   payments,     ordered

defendant to pay arrearages based on his previous failure to pay

plaintiff    the   basic    annuity     payment,     and    denied    defendant’s

motion for sanctions.4          Defendant appeals the 2013 Order.

                                 II.   2013 Order

      Both   plaintiff     and     defendant      have   inaccurately     labeled

various requests and claims both before the trial court and this

Court.    For example, plaintiff requested that the trial court

“clarify the wording of the” Amended Agreement, although her

motion would more properly be called a request for reformation,

see Metropolitan Property and Cas. Ins. Co. v. Dillard, 126 N.C.



4
  In denying defendant’s motion for sanctions the trial court
also found that “[t]he issue of whether or not the plaintiff is
entitled to receive one half of the defendant’s monthly FERS
basic annuity was not fully litigated and decided at the prior
hearing in this cause on March 25, 2011.”
                                          -23-
App. 795, 798, 487 S.E.2d 157, 159 (1997) (“Reformation is a

well-established       equitable          remedy        used        to     reframe      written

instruments       where,    through     mutual       mistake         or     the    unilateral

mistake of one party induced by the fraud of the other, the

written instrument fails to embody the parties’ actual, original

agreement. . . . Negligence on the part of one party which

induces    the     mistake     does    not    preclude          a    finding       of    mutual

mistake.      In    other    words,     the    fact      that        the    mistake      arises

because the party who is seeking the reformation supplied the

incorrect    information       does    not     make      the     mistake        unilateral.”

(citations,        quotation     marks,        and      brackets           omitted)),       and

defendant sought a form of relief that is not even available

when he requested a dismissal of a motion, rather than a denial

of said motion.            See generally N.C. Gen. Stat. § 1A-1, Rule

12(b)   (2011)      (regarding      the    dismissal           of    claims,       not   other

motions).     Yet it is clear that both parties knew and understood

the substantive requests or challenges the other was making and

both parties have          addressed these issues,                   so we        will simply

address     the     issues     on     appeal       in     substance,            rather     than

attempting to use the titles which the parties proposed in their

arguments    both    before     the    trial     court         and       this   Court.      See

generally In re Testamentary Tr. of Charnock, 158 N.C. App. 35,
                                         -24-
39, 579 S.E.2d 887, 890 (2003) (“It is the substance of the

application,        or    petition,    and     the     relief     which     is    sought

thereunder     that       determines    its     true     nature,    not     the     title

appended thereto by the petitioner.                    It has long been the law

that the nature of the action is not determined by what either

party calls it, but by the issues arising on the pleadings and

by the relief sought.            We will, therefore, undertake our own

inquiry into the . . . issues arising on the pleadings and the

relief     sought    in    appellants’       petition.”        (citation,    quotation

marks, and brackets omitted)), aff’d, 358 N.C. 523, 597 S.E.2d

706 (2004).

      In substance, defendant contends that the trial court erred

in ordering him to pay plaintiff one-half of his basic annuity

because plaintiff was barred from raising that issue in her 2012

Motion since the trial court had already denied this same relief

in the 2011 Order; in addition, the trial court also erred in

finding defendant to be in contempt for failing to do something

he   had   never    been    ordered    to     do   and    in    denying    defendant’s

motion for sanctions based on the issue of the basic annuity.

Plaintiff     contends       that      her    2010       and    2012      Motions     are

substantively different, mainly because the 2010 Motion was a

motion to “clarif[y]” wording of the Amended Agreement as to the
                                  -25-
retirement benefits to reflect the “the clear intentions of the

parties” for plaintiff to receive one-half of defendant’s basic

annuity payments, while, in contrast,        the 2012    Motion was a

motion for contempt for defendant’s failure to pay plaintiff her

one-half of the basic annuity.     We agree with defendant.

     Contrary to the trial court’s finding of fact that “[t]he

issue of whether or not the plaintiff is entitled to receive one

half of the defendant’s monthly FERS basic annuity was not fully

litigated and decided at the prior hearing in this cause on

March 25, 2011[,]” we find, based upon consideration of the

motions, the transcript     from the     2011 hearing, and    the 2011

Order, that the issue was quite fully litigated and decided. In

plaintiff’s 2010 Motion, she very specifically requested that

the trial court order defendant to pay of one-half of the basic

annuity payments, including both reimbursement of past sums due

and continued payment in the future.       Plaintiff contends she was

seeking to “clarif[y]” the Amended Agreement, but legally, what

she sought would more properly be termed reformation of the

Amended Agreement.    See Metropolitan Property and Cas. Ins. Co.,

126 N.C. App. at 798, 487 S.E.2d at 159.

      But in its 2011 Order, the trial court denied reformation

of   the   Amended   Agreement,   although   it   did   not   use   this
                                                -26-
terminology.5 The trial court found that the Amended Agreement

was “unambiguous” and that it would not “modify or supplement”

the Amended Agreement, and the trial court quite specifically

awarded       plaintiff      payment        of        one-half     of   the    supplemental

annuity only and not the basic annuity.                          We know that this issue

was litigated and that the trial court did not overlook the

basic   annuity        or   confuse        it    with     the     supplemental       annuity,

because the trial court also found that defendant was already

receiving      basic    annuity       payments          and   plaintiff       had   requested

that    she    receive       half     of    both        the   basic     and    supplemental

annuities. Yet in plaintiff’s 2012 Motion, she again requested

that defendant be required to pay her one-half of the basic

annuity payments, past and future.

       While the 2011 Order did not explicitly state that it was

denying plaintiff’s request for the basic annuity, in that order

the trial court made numerous and detailed findings regarding

both    the     basic       annuity        and    the     supplemental         annuity    but

ultimately awarded plaintiff only a portion of the supplemental

annuity.       In the 2011 Order, the trial court found that while

“plaintiff      contend[ed]         that        the    Amended     Separation       Agreement

5
  As the 2011 Order was not appealed, we express no opinion as to
whether the trial court could have or should have granted
reformation of the Amended Agreement in 2011.
                                         -27-
should be modified and clarified to required the defendant to

pay her ½ of his” basic annuity . . . “the court deems that the

Amended Separation Agreement is unambiguous in regards to the

plaintiff’s right concerning the defendant’s retirement benefits

and will not modify or supplemental the provisions contained

therein.”        The    trial    court    then    found     that   plaintiff        was

“entitled to receive ½ of the defendant’s” supplemental annuity.

The trial court’s conclusions of law and decree are supported by

the findings of fact as the trial court did not award plaintiff

payment for one-half of the basic annuity, as it stated it would

“not    modify    or    supplement”      the     Amended    Agreement    to        grant

plaintiff these payments as she requested, but the trial court

did    order     that     plaintiff      should    receive     one-half       of    the

supplemental annuity which was specifically provided for in the

Amended Agreement.         The 2011 Order was not appealed by either

party and thus is the law of the case.                     See Wellons v. White,

___ N.C. App. ___, ___,          748 S.E.2d 709, 720 (2013) (“The law of

the case doctrine provides that when a party fails to appeal

that order, the decision below becomes the law of the case and

cannot   be    challenged       in   subsequent     proceedings     in    the      same

case.”    (citation, quotation marks, and brackets omitted)). The

question of plaintiff’s entitlement to one-half of the basic
                                       -28-
annuity payments was decided in 2011 and the 2011 Order was not

appealed. As such, plaintiff’s 2012 Motion which again requested

payment for one-half of the basic annuity had no legal basis in

either the Amended Agreement or the 2011 Order, and the trial

court should not have allowed such a request.               See id.

    We also agree with defendant that he cannot be held in

contempt for something he was never ordered to do.                    In the 2012

Order,    all   of   the   findings     of    fact   and   conclusions    of   law

regarding why the trial court found defendant to be in contempt

were regarding his failure to pay the basic annuity payment, not

the supplemental annuity payment.                But because defendant was

under    no   obligation    to   pay    plaintiff     one-half   of    the   basic

annuity payments, under either the Amended Agreement, as decided

in the 2011 Order, or under the 2011 Order itself, which ordered

only payment of the supplemental annuity, he could not be held

in contempt on this issue.             As failure to pay one half of the

basic annuity payment was the only basis upon which plaintiff

sought for defendant to be held in contempt, and that basis is

improper, the trial court should not have found defendant to be

in contempt.

    Lastly, because the trial court ultimately determined that

plaintiff had not erred in bringing the basic annuity payment
                              -29-
issue before the court again, it denied defendant’s request to

sanction plaintiff.   But as noted above, this was error on the

part of the trial court.     As such, on remand the trial court

should reconsider defendant’s motion for sanctions in light of

this opinion, although we express no opinion on whether the

trial court should or should not sanction plaintiff.

                           III. Conclusion

    In conclusion, we reverse the trial court’s determination

that plaintiff is entitled to receive payment from defendant’s

basic annuity; we reverse the trial court’s determination that

defendant was in contempt, and we reverse and remand the trial

courts determination denying defendant’s motion for sanctions.

    REVERSED and REMANDED in part.

    Judges HUNTER, JR., Robert N. and DILLON concur.
