              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-1151

                                Filed: 3 April 2018

Alamance County, No. 16 E 150

In re: Estate of THOMAS S. SHARPE, Deceased.




      Appeal by petitioner from judgment entered 23 June 2017 by Judge G. Wayne

Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 6

March 2018.


      Holt, Longest, Wall, Blaetz & Moseley, PLLC, by W. Phillip Moseley and Peter
      T. Blaetz, for petitioner-appellant.

      Oertel, Koonts & Oertel, PLLC, by Geoffrey K. Oertel, for respondent-appellee.


      TYSON, Judge.


                                   I. Background

      Thomas S. Sharpe and Alma G. Seward were married on 21 November 2009,

and remained married until Thomas S. Sharpe’s death on 14 January 2016. Thomas

S. Sharpe was 86 years old and Alma G. Seward was 75 years old when they were

married. Both had been married previously and had adult children from their prior

marriages.

      On 18 February 2016, a will for Thomas S. Sharpe (“testator”) was entered into

probate by his son, Thomas F. Sharpe. Attached to the will was a pre-marital
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agreement and a document entitled the “Thomas S. Sharpe Irrevocable Trust

Agreement.”

      The testator’s will designates Thomas S. Sharpe’s two adult children from a

previous marriage, Susan Wall and Thomas F. Sharpe, as co-executors. The will

bequeaths all of the testator’s estate to the “Thomas S. Sharpe Irrevocable Trust

Agreement.” The two beneficiaries of the trust are Thomas F. Sharpe and Susan

Wall. The will leaves nothing to the testator’s wife at his death.

      The pre-marital agreement was executed between Thomas S. Sharpe and Alma

G. Seward on 4 November 2009. The pre-marital agreement has two schedules

attached, Schedule A and Schedule B. Schedule A lists all the separate property

belonging to Thomas S. Sharpe and Schedule B lists all the separate property

belonging to Alma G. Seward. The pre-marital agreement states that “each party

agrees that the separate property shall include, but not be limited to, the property

described hereafter, and that the separate property of the party shall remain the

separate property of the other party.”

      Following Thomas S. Sharpe’s death, Alma G. Seward filed a petition to claim

an elective share of her husband’s estate on 23 June 2016. “Under N.C. Gen. Stat. §

30-3.1 et seq., a wife who survives her husband may choose to take an ‘elective share’

of the decedent’s assets rather than taking under the decedent’s will.” In re Estate of

Heiman, 235 N.C. App. 53, 56, 761 S.E.2d 191, 193 (2014) (footnote omitted). The



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executor, Thomas F. Sharpe (“Respondent”), filed an answer and reply denying Alma

G. Seward’s right to claim an elective share.

      The Alamance County Clerk of Superior Court conducted a hearing on 17

January 2017 and entered an order granting Alma G. Seward’s petition for an elective

share. Thomas F. Sharpe appealed to the Alamance County Superior Court on 31

January 2017. On 23 March 2017, Alma G. Seward died. Alma G. Seward’s personal

representative, Steven Lawrence Seward (“Petitioner”), filed a motion to substitute a

party. That motion was granted by an order filed 25 May 2017.

      The matter was heard on 15 May 2017 in the superior court. The superior

court entered a judgment filed 23 June 2017 denying Petitioner’s petition for an

elective share. Petitioner gave timely notice of appeal.

                                   II. Jurisdiction

      Appeal lies of right in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1)

(2017).

                                      III. Issues

      Petitioner argues the superior court erred in concluding the pre-marital

agreement between Alma G. Seward and Thomas S. Sharpe waives Alma G. Seward’s

right to claim an elective share in his estate. Petitioner also contends the superior

court improperly took judicial notice of Alma G. Seward’s will to interpret the pre-

marital agreement. We address each argument in turn.



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                               IV. Standard of Review

      On appeal of estate matters determined by the clerk, the superior court reviews

an order of the clerk for purposes of determining: (1) whether the findings of fact are

supported by the evidence; (2) whether the conclusions of law are supported by the

findings of fact; and (3) whether the order or judgment is consistent with the

conclusions of law and applicable law. N.C. Gen. Stat. § 1-301.3(d) (2017).

      The superior court, and therefore this Court, only reviews those “findings of

fact which the appellant has properly challenged by specific exceptions.” In re Estate

of Lowther, 271 N.C. 345, 354, 156 S.E.2d 693, 700-01 (1967); see also In re Estate of

Pate, 119 N.C. App. 400, 403, 459 S.E.2d 1, 2-3 (1995) (“The standard of review in

this Court is the same as in the Superior Court.”).

                                     V. Analysis

                              A. Pre-marital Agreement

      Both parties agree the pre-marital agreement at issue was executed both

voluntarily and after full disclosure. The order of the clerk reviewed by the superior

court contained ten findings of fact. These include:

             1. A prenuptial agreement was executed between Thomas
             S. Sharpe and Alma Seward on November 4, 2009.

             2. Thomas S. Sharpe and Alma Seward were marred on
             November 21, 2009.

             3. Thomas S. Sharpe died January 14, 2016 still married to
             Alma Seward Sharpe.


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             4. A will for Thomas Sharpe was filed with Alamance
             County Estate office on February 18, 2016.

             5. The will named his son, Thomas F. Sharpe, and his
             daughter, Susan Sharpe Wall, as co-executors of his will.

             6. The will gives the tangible personal property (clothing,
             jewelry, automobiles, and personal effects) to Susan Wall
             and Thomas F. Sharpe.

             7. The will gives the residue of the estate to the Thomas S.
             Sharpe Trust which effectively divides the property
             between the two children, Susan Wall and Thomas F.
             Sharpe.

             8. The widow of Thomas S. Sharpe, Alma Seward Sharp[e],
             receives nothing under this will.

             9. Alma Sharpe, through her Attorney in Fact, Steven
             Seward, filed this petition [to] get an elective share of the
             Total Net Assets pursuant to N.C. G.S. 30-3.1 on June 23,
             2016.

             10. The Prenuptial agreement executed by Thomas Sharpe
             and Alma Seward contains no clause waiving her right to
             claim an elective share of his estate.

      Based upon these findings of fact, the clerk concluded Alma G. Seward’s

petition for an elective share should be granted. Findings of fact 1 through 9 in the

clerk’s order recited undisputed facts, which were consented to by both parties, and

neither party challenges these findings of fact. On appellate review, the superior

court determined all of the clerk’s findings of fact were supported by the evidence,

except for finding of fact 10.



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       The superior court determined, “Finding of fact 10 is partially correct in that

there is not one specific clause waiving the spouse[‘s] right to claim an elective share

of the estate, but the findings supported by the evidence, contradict this statement

and conclusively establish the intent of the parties.” The only finding of fact at issue

is finding of fact 10.

       Although it was labelled as a “finding of fact” by the clerk, it is actually a

conclusion of law, because it involves a matter of contract interpretation. Shelton v.

Duke Univ. Health Sys., 179 N.C. App. 120, 123, 633 S.E.2d 113, 115 (2006) (“Contract

interpretation is a matter of law, and the standard of review for this Court is de

novo.”) (citation omitted).   The labels “findings of fact” and “conclusions of law”

employed by the lower tribunal in a written order do not determine the nature of our

standard of review. See Peters v. Pennington, 210 N.C. App. 1, 15, 707 S.E.2d 724,

735 (2011) (reviewing what was labeled as a “conclusion of law” as a finding of fact).

If the lower tribunal labels as a finding of fact what is in substance a conclusion of

law, we review that “finding” as a conclusion de novo. See id. We therefore apply de

novo review to the clerk’s “finding of fact” 10.

       To determine whether “finding of fact” 10 is outcome determinative of the

issue, we review the terms of the pre-marital agreement. The pre-marital agreement

contains, in part, the following pertinent provisions:

              WHEREAS, both parties are individually possessed of
              certain separate property and both acknowledge that they


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played no role in the accumulation of the other’s separate
property; and,

WHEREAS, the parties desire to contract with each other
concerning matters of the disposition of their separate
property;

....

1. Division of Property. Except as provide[d] below, each
party agrees that the separate property of the other party
shall include, but not be limited to, the property described
hereafter, and that the separate property of the party shall
remain the separate property of the other party.

....

2. Exclusive Right to Manage Separate Property. Each
party has the sole and exclusive right at all times to
manage and control their respective separate property to
the same extent as if each were unmarried. This right to
manage and control includes the right to dispose of any or
all of that party’s separate property by deed, will, or
otherwise on that party’s sole signature without any
involvement or control by the other party[.] (Emphasis
supplied).

....

3. Obligation to Join in Execution of Documents and Free
Trader Agreement. . . . Each party specifically waives,
relinquishes, renounces, and gives up any claim that he or
she may have or otherwise had or may have made to the
other’s separate property under the laws of this state. Each
party agrees to execute a separate “Free Trader
Agreement” to be recorded in the Alamance County
Register of Deeds setting forth the intent of the parties.

....



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            8. Agreements with Respect to Home. The parties will be
            residing at a home owned by Husband.

                   1. In the event of the death of Husband, the property
                   shall be the sole and separate property of Husband
                   subject to a right to possession by Wife so long as she
                   maintains the house as her principal residence.

                   2. If Wife should die and Husband survive, the
                   property shall be the sole and separate property of
                   Husband.

            ....

            12. Miscellaneous Provisions. To clarify certain aspects of
            this document’s execution and effectiveness, the parties
            agree as follows: . . .

                   b. This Agreement shall be binding upon and inure
                   to the benefit of the parties and their respective
                   heirs,   executors,    personal   representatives,
                   successors, and assigns.

            ....

            13. Entire Agreement. This represents the entire
            Agreement of the parties with regard to the subject matter
            hereof. . . . All prior and contemporaneous conversations,
            negotiations, possible and alleged agreements and
            representations, covenants, and warranties with respect to
            the subject matter hereof are waived, merged herein, and
            superseded hereby.

      In interpreting these provisions, we employ several well-established principles

of contract construction. Pre-marital agreements are contracts, and “principles of

construction applicable to contracts also apply to premarital agreements.” Howell v.

Landry, 96 N.C. App. 516, 525, 386 S.E.2d 610, 615 (1989), disc. review denied, 326


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N.C. 482, 392 S.E.2d 90 (1990); see also 1 Lloyd T. Kelso, N.C. Family Law Practice §

3:7 (2017) (“Premarital agreements, like marital property settlement agreements, are

subject to the same rules of construction applicable to contracts generally, including

the application of the plain meaning of unambiguous contractual terms.”).

      If “the language of a contract is clear and unambiguous, construction of the

contract is a matter of law for the court.” Hagler v. Hagler, 319 N.C. 287, 294, 354

S.E.2d 228, 234 (1987). “It must be presumed the parties intended what the language

used clearly expresses, and the contract must be construed to mean what on its face

it purports to mean.” Hartford Acc. & Indemnity Co. v. Hood, 226 N.C. 706, 710, 40

S.E.2d 198, 201 (1946) (internal citations omitted).

      “[T]he object of all interpretation is to arrive at the intent and purpose

expressed in the writing, looking at the instrument from its four corners, and to

effectuate this intent and purpose unless at variance with some rule of law or

contrary to public policy.” Citizens Nat. Bank v. Corl, 225 N.C. 96, 102, 33 S.E.2d 613,

616 (1945) (citation omitted).

      “Courts are not at liberty to rewrite contracts for the parties. We are not their

guardians, but the interpreters of their words. We must, therefore, determine what

they meant by what they have said- what their contract is, and not what it should

have been.” Penn v. Standard Life Insurance Co., 160 N.C. 399, 402, 76 S.E. 262, 263

(1912).



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      The Supreme Court of North Carolina’s opinion in Lane v. Scarborough, 284

N.C. 407, 200 S.E.2d 622 (1973), is instructive in interpreting the pre-marital

agreement. In Lane, a surviving wife asserted a right to share in her deceased

husband’s estate. 284 N.C. at 408, 200 S.E.2d at 623. During their marriage, the

parties executed a separation agreement, which had no specific express release of the

wife’s right to intestate succession. Id. The superior court held that the wife had not

released her right to intestate succession and was entitled to share in her deceased

husband’s estate. Id. This Court affirmed the superior court and the Supreme Court

reversed. Id. at 409, 412, 200 S.E.2d at 624-25.

      In analyzing the separation agreement, the Supreme Court recognized express

terms therein, such as “[t]hey agreed . . . they would live wholly separate and apart

from each other as though they had never been married” and that “each agreed that

the other would thereafter hold, acquire, and dispose of all classes and kinds of

property, both real and personal, as though free and unmarried.” Id. at 411, 200

S.E.2d at 625. The Court also noted the separation agreement stated that each party

“released the right to administer upon the estate of the other.” Id.

      The Court determined that “the specific terms of the contract are totally

inconsistent with an intention that the parties would each retain the right to share

in the estate of the other . . . if he or she were to become the surviving spouse.” Id.

The Court ultimately concluded: “The provisions that each would thereafter acquire,



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hold, and dispose of property as though unmarried and that each renounced the right

to administer upon the estate of the other refute the contention that [the wife]

intended to retain any rights in her husband’s estate.” Id.

      Here, the unambiguous language of the uncontested and valid pre-marital

agreement plainly establishes the parties intention, prior to their marriage, that

Alma G. Seward waived any rights in Thomas S. Sharpe’s separate property and that

Thomas S. Sharpe waived any rights in Alma G. Seward’s separate property. The

pre-marital agreement also clearly and unambiguously states “[e]ach party has the

sole and exclusive right at all times to manage and control their respective separate

property to the same extent as if each were unmarried[,]” and “[e]ach party

specifically waives, relinquishes, renounces, and gives up any claim that he or she

may have or otherwise had or may have made to the other’s separate property under

the laws of this state.”

      The only logical reading of “each party specifically waives . . . any claim . . . to

the other’s separate property under the laws of this state,” would extend, in light of

the entire agreement, to include a spouse’s right to claim an elective share under N.C.

Gen. Stat. § 30-3.1.       The pre-marital agreement also expressly states: “This

Agreement shall be binding upon and inures to the benefit of the parties and their

respective heirs, executors, personal representatives, successors, and assigns.” The

implications of these express and unambiguous terms “refute the contention that [the



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wife] intended to retain any rights in her husband’s estate.” See id. Petitioner’s

argument is overruled

      Petitioner contends that the language in the pre-marital agreement is not

sufficiently express or specific to include a waiver or release of Alma G. Seward’s right

to claim an elective share in her deceased husband’s estate. Petitioner cites the case

of Napier v. Napier, 135 N.C. App. 364, 520 S.E.2d 312 (1999), disc. review denied,

351 N.C. 358, 543 S.E.2d 132 (2000), in support of his contention.

      At issue in Napier was whether a release term under a separation agreement

constituted a waiver of alimony. Napier, 135 N.C. App. at 366, 520 S.E.2d at 313. The

separation agreement provided:

             L. Mutual release: Subject to the rights and privileges
             provided for in this Agreement, each party does hereby
             release and discharge the other of and from all causes of
             action, claims, rights or demands whatsoever, at law or in
             equity, which either of the parties ever had or now has
             against the other, known or unknown, by reason of any
             matter, cause or thing up to the date of the execution of this
             Agreement, except the cause of action for divorce based
             upon the separation of the parties.

Id. at 365-66, 520 S.E.2d at 313 (emphasis omitted).

      This Court concluded that broad language was not sufficiently “express” to

constitute a valid waiver of alimony under N.C. Gen. Stat. § 50-16.6(b), as it did not

“specifically, particularly, or explicitly refer to the waiver, release, or settlement of

‘alimony’ or use some other similar language having specific reference to the waiver,



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release, or settlement of a spouse’s support rights.” Id. at 367, 520 S.E.2d at 314.

      Furthermore, this Court determined that, without regard to the issue of the

separation agreement not containing an express waiver of alimony, that:

             The preamble to the Agreement specifically states that it
             is entered into ‘pursuant to North Carolina General
             Statutes Section 50-20(d).’ This statute deals with the right
             of married persons to make agreements with respect to the
             distribution of their marital property under the equitable
             distribution statutes. The reference to section 50-20(d)
             thus reveals the intent of the parties to restrict the
             Agreement to marital property issues within the scope of
             equitable distribution. Issues of spousal support are not
             within the province of the equitable distribution statute.

Id. at 367-68, 520 S.E.2d at 314.

      Contrary to Petitioner’s contention, the ruling in Napier is not inconsistent

with the determination that the pre-marital agreement before us constitutes a waiver

of Alma G. Seward’s right to claim a spousal elective share in Thomas S. Sharpe’s

separate property and estate. The pre-marital agreement at issue expressly states:

“[e]ach party has the sole and exclusive right at all times to manage and control their

respective separate property to the same extent as if each were unmarried[,]” and

“[e]ach party specifically waives, relinquishes, renounces, and gives up any claim that

he or she may have or otherwise had or may have made to the other’s separate

property under the laws of this state.” (Emphasis supplied). Also, as noted above, the

pre-marital agreement states: “This Agreement shall be binding upon and inure to

the benefit of the parties and their respective heirs, executors, personal


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representatives, successors, and assigns.”

      Although the pre-marital agreement does not expressly refer to the parties

rights to claim upon each other’s estate, the plain and unambiguous language does

not permit us to read the agreement to mean the parties intended to waive rights to

each other’s separate property while they were alive, but not after one of them had

pre-deceased the other.

      Additionally, unlike in Napier, the pre-marital agreement here does not have

a specific reference to a statute that would limit the scope of the agreement to the

scope of that statute. See id. (determining that reference to N.C. Gen. Stat. 50-20(d)

limited the scope of the separation agreement to issues within the province of

equitable distribution statute). The facts and holding in Napier are distinguishable

and do not control our analysis with regard to the pre-marital agreement here.

      Following Lane, and well-settled principles of contract construction, the

express language of the pre-marital agreement shows Alma G. Seward voluntarily

waived any right to claim a spousal elective share of the decedent Thomas S. Sharpe’s

separate property. Petitioner’s arguments are overruled.

                                  B. Judicial Notice

      Petitioner additionally argues the superior court erred, or abused its

discretion, by taking judicial notice of the will of Alma G. Seward, which had not been

submitted into evidence when this matter was heard before the clerk.



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      Rule 201 of the N.C. Rules of Evidence permits the trial court to take judicial

notice of adjudicative facts, which are defined as those facts which are:

              (b) . . . [N]ot subject to reasonable dispute in that [they] are
              either (1) generally known within the territorial
              jurisdiction of the trial court or (2) capable of accurate and
              ready determination by resort to sources whose accuracy
              cannot reasonably be questioned.

N.C. Gen. Stat. § 8C-1, Rule 201(b) (2017).

      The trial court is required to take judicial notice of certain facts only when a

party requests it and supplies the necessary information pursuant to Rule 201(d).

Otherwise, taking judicial notice rests within the discretion of the trial court

pursuant to Rule 201(c). N.C. Gen. Stat. § 8C-1, Rules 201(c) and (d).

      Presuming, arguendo, without deciding the superior court acted improperly by

taking judicial notice of the will of Alma G. Seward, Petitioner fails to demonstrate

how they were prejudiced.

      After concluding Petitioner waived any right to an elective share of the

decedent’s separate property, the order of the superior court states, in pertinent part,

as follows:

              Although not necessary to resolve this matter, but as
              corroboration for the decision, the Court notes it may take
              judicial notice of the estate files of this county. The Court
              again notes that Ms. Seward, in her will, executed after the
              Premarital Agreement, chooses not to bequeath anything
              to the deceased ‘pursuant to a premarital agreement
              executed by us on November 4, 2009.’ Although the Court
              does not find there is any ambiguity or doubt as to the


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             meaning of the agreement, had there been any doubt the
             will would have resolved it. . . . Here, Ms. Seward’s
             statements in her will conclusively establish that she
             believed, and correctly so, that she had to make NO
             provision for her husband. This evidence would not be
             barred by the merger clause in the Premarital Agreement
             because it was not made prior to or contemporaneously
             with the agreement. (Emphasis supplied).

      The superior court’s order is abundantly clear and shows the court did not rely

upon Alma G. Seward’s will in making its ruling, but only noticed it for corroboration

of that decision. Apparent from the face of the order, the superior court concluded

Petitioner was not entitled to claim a spousal elective share with or without taking

judicial notice of Alma G. Seward’s will. Petitioner fails to demonstrate the superior

court’s taking judicial notice of Alma G. Seward’s will was an abuse of discretion or

prejudicial. Petitioner’s argument is overruled.

                                   VI. Conclusion

      The plain and unambiguous language of the pre-marital agreement between

Thomas S. Sharpe and Alma G. Seward indicates Alma G. Seward waived any right

to claim a spousal elective share of Thomas S. Sharpe’s separate property or estate.

Petitioner has demonstrated no abuse of discretion or prejudice from the superior

court taking judicial notice of Alma G. Seward’s will. The order of the superior court

is affirmed. It is so ordered.

      AFFIRMED.

      Judges BRYANT and DILLON concur.


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