Reeder v. Carter: The court dismissed the wife’s claim for specific performance as she failed to show that the husband had the ability to perform.
By Carole Gailor, family law specialist
The plaintiff-wife filed a complaint in December 2010 alleging the defendant-husband had breached a separation agreement. The wife contended the husband had failed to pay $423,000 in mortgage payments, $12,000 in child support and $56,000 in certain debt. The husband did not file an answer. After hearing the court indicated to the parties that the wife’s claim for specific performance would be denied. Prior to entry of any order the wife filed motions for judgment n.o.v. under Rule 50(b), a motion to include certain findings under rule 52 and motion for new trial under Rules 59 (a)(8) and 59 (a)(9).
Reeder v. Carter: Dismissal of Wife’s claim for specific performance
In February 2009 the trial court denied the wife’s motion for specific findings of fact and for a new trial. The trial court also issued its order denying wife’s claim for specific performance, granting wife damages of $22,950 for unpaid child support and for $4,333 for husband’s failure to pay certain debt. In addition, the court awarded the wife attorney fees of $832.00 and dismissed her claims for unpaid mortgage payments. The wife filed a timely notice of appeal of the trial court’s orders. On appeal, the wife only addressed the denial of her claim for specific performance and the Court of Appeals’ decision is limited to consideration of this issue.
The Court of Appeals held that while the separation agreement requires specific performance upon breach, this contractual provision does not extinguish the movant’s obligation to prove the elements of a specific performance claim. A party may not contract around an established legal standard and contractual specific performance clauses are not binding on the trial court. Second, the wife failed to prove that the husband had the ability to perform. The fact that the husband failed to answer the wife’s complaint and admitted wife’s factual allegations does not meet the wife’s burden where the wife did not allege specific facts regarding the husband’s ability to perform. The Court of Appeals did not address the third factor: that the wife herself had not breached the agreement.
Based on the wife’s failure to meet the requirements to show the husband had the ability to perform, the Court of Appeals affirmed the order of the trial court dismissing the wife’s claim for specific performance.
Carole Gailor is the founding and managing member of Gailor, Hunt, Jenkins, Davis & Taylor, PLLC in Raleigh, North Carolina. She is a Board Certified Family Law Specialist, Fellow in the American Academy of Matrimonial Lawyers and President of the North Carolina Chapter. Carole has been selected for Best Lawyers in America for multiple years, and one of the Top Fifty Women Lawyers in North Carolina by Super Lawyers. Her website: http://www.gailorwallis.com/cgailor.htm
Where spouses own more than one residential property, it is important to calculate the present value of income tax on disposition.Published on: