Burakowski v. Burakowski

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

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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.

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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.

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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

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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

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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.

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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

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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.

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.