An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in 

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of 

Appellate Procedure.

NO. COA13-1133

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

JENESS J. CAMPBELL,

Plaintiff,

v. Wake County

No. 09 CVD 17335

MELVIN E. CAMPBELL,

Defendant.

Appeal by defendant from order entered 3 May 2013 by Judge 

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

Court of Appeals 19 February 2014.

Kurtz & Blum, PLLC, by Lynn A. Prather, and Sandlin Family 

Law Group, by Debra A. Griffiths, for plaintiff-appellee.

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

defendant-appellant.

BRYANT, Judge.

The District Court has subject matter jurisdiction over 

claims for equitable distribution and alimony, and can 

incorporate those claims into a judgment for absolute divorce by 

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

enforced through the contempt powers of the court.

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

absolute divorce from defendant Melvin E. Campbell. That same 

day, plaintiff filed a separate action for a qualified domestic 

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

answered and filed a pro se answer and counterclaim for 

equitable distribution, alimony and attorneys’ fees. Although 

defendant captioned his answer and counterclaim in response to 

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

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

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

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

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

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

counterclaim was an insufficient defense to absolute divorce and 

contained irrelevant material meant to harass plaintiff, and 

that defendant’s counterclaim was meritless because defendant 

had already agreed to a mediated settlement agreement resolving 

 

1 Plaintiff’s QDRO action, 09 CVD 17334, sought an order 

regarding a $25,000.00 lump sum distribution to defendant from 

plaintiff’s Duke University retirement plan. On 19 February 

2010, the trial court issued an order granting plaintiff’s QDRO 

action. 
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all issues. On 3 December 2009, plaintiff filed an affidavit of 

judicial assignment and notice of hearing requesting an 

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

and for Rule 11 sanctions. 

On 3 February 2010, a memorandum of mediated settlement 

agreement was filed. The settlement agreement contained 

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

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

retirement accounts; custody and visitation rights for the 

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

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

entered a judgment for absolute divorce which incorporated the 

memorandum of settlement agreement and noted that with the 

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

between the parties have been resolved pursuant to the mediated 

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

dismissing all of plaintiff’s motions and defendant’s 

counterclaims. 

On 26 March 2012, plaintiff filed a motion to modify 

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

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

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

financial situation requiring a change in plaintiff’s alimony 

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

the marital residence so that he can remain living there rentfree with Plaintiff paying the entire mortgage, taxes, home 

owners association fees and social country club dues.” 

Plaintiff thereafter dismissed her motion to modify alimony. An 

amended and supplemental motion for an order to show cause was 

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

alleging defendant had committed many acts that obstructed the 

sale of the marital home. 

In the meantime, on 10 January 2013, defendant filed 

motions to modify alimony and to show cause for contempt, 

alleging that plaintiff had refused to sign listing contracts 

with realtors, failed to reimburse defendant for repairs to the 

marital home, and had violated defendant’s visitation rights 

with the family dog. Defendant further alleged that because 

plaintiff’s financial situation had improved while defendant’s 

financial situation simultaneously declined, defendant was 

entitled to an increase in alimony.

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

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

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

plaintiff filed a motion to dismiss defendant’s motions to 

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

again alleging that defendant’s motions to compel and for 

sanctions were frivolous and made solely for the purpose of 

harassing her. 

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

all motions filed by plaintiff and defendant. The trial court 

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

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

motions for Rule 11 and Rule 37 sanctions; and dismissing 

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

Defendant appeals.

__________________________

 

2 In holding defendant in civil contempt of the 3 February 2010 

order, the trial court made findings of fact that defendant 

willfully refused to sell the marital home by: failing to place 

the home on the market with a reputable real estate agent; 

listing the home at an unrealistic sale price; refusing to place 

“for sale” signs in the yard or a lock box on the door; making 

unreasonable demands and conditions on realtors wishing to show 

the home to potential buyers; and failing to keep the home in a 

saleable condition by not making required repairs, maintaining 

the yard, and keeping the home’s temperature at a comfortable 

level. The trial court then noted that “[i]t is clear that 

Defendant is willfully blocking the sale of the marital house” 

and that “Defendant’s actions are willful and calculated to 

ensure that the house will never sell.” 
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On appeal, defendant argues that: (I) the trial court 

lacked subject matter jurisdiction over defendant’s claims for 

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

subject matter jurisdiction to incorporate the memorandum of 

mediated settlement agreement into the divorce complaint; and 

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

I.

Defendant first argues that the trial court lacked subject 

matter jurisdiction over his claims for alimony and equitable 

distribution. We disagree.

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

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

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

(2009) (citations omitted).

Defendant contends that because plaintiff did not file for 

equitable distribution and alimony when she filed for absolute 

divorce and failed to join defendant’s counterclaims for 

equitable distribution and alimony to her complaint for absolute 

divorce, the trial court lacked subject matter jurisdiction to 

adjudicate defendant’s claims for equitable distribution and 

alimony when it ruled on plaintiff’s complaint for absolute 

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

were settled by the consent of both parties to the settlement 

agreement. 

Subject matter jurisdiction over domestic claims is 

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

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

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

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

Plaintiff filed separate actions for absolute divorce and a 

QDRO. Defendant counterclaimed for equitable distribution, 

alimony and attorneys’ fees; the counterclaim contained a file 

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

was otherwise tailored to respond to plaintiff’s complaint for 

absolute divorce. In its 12 February 2010 order dismissing 

defendant’s counterclaims, the trial court noted that 

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

clearly meant to be an answer to the Absolute Divorce Complaint 

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

consented to integrate the parties’ mediated settlement 

agreement for Equitable Distribution and Alimony with the 

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

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

defendant’s counterclaims for equitable distribution and alimony 

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

defendant’s counterclaims for equitable distribution and alimony 

were considered in conjunction with plaintiff’s complaint for 

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

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

order granting plaintiff’s complaint for absolute divorce on 15 

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

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

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

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

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

equitable distribution claim prior to the . . . entry of 

judgment of absolute divorce, the trial court had jurisdiction 

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

Defendant’s argument is overruled.

II.

Defendant next contends the trial court lacked subject 

matter jurisdiction to incorporate the settlement agreement into 

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

proceedings of a court without jurisdiction of the subject 

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

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

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

incorporated settlement agreements in the area of domestic 

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

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

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

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

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

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

consent judgments, are modifiable, and enforceable by the 

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

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

agreement can be kept separate and under the laws of contract 

only where the parties agree to not submit their separation 

agreement to the trial court. Id. 

Defendant contends the trial court lacked subject matter 

jurisdiction to incorporate the settlement agreement into the 

absolute divorce because the agreement lacks any indication that 

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

stipulated to the incorporation. However, the record does not 

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

for absolute divorce, the trial court noted that “all 

outstanding issues between the parties have been resolved 

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

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

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

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

incorporated by reference.” The settlement agreement, which was 

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

parties waive the inclusion of any findings of fact and 

conclusions of law in the formal judgment/order which will 

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

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

acknowledged that the “mediated agreement including provisions 

for equitable distribution and alimony was executed by the 

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

incorporated into the parties’ divorce by agreement on February 

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

agreement to be bound by its terms, including its incorporation

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

12 March 2013 order dismissing defendant’s counterclaims and 

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

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

the parties’ mediated settlement agreement for Equitable 

Distribution and Alimony with the judgment for absolute 

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

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

matters of alimony and equitable distribution shall be attached 

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

further note that in the 3 February 2010 hearing regarding 

plaintiff’s complaint for absolute divorce, defendant 

acknowledged that he had signed the settlement agreement and 

that the agreement “represents the entire agreement of the 

parties with respect to the issues addressed herein.” Defendant 

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

settlement agreement into the judgment for absolute divorce at 

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

presumption that provisions in a separation agreement or consent 

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

However, where the parties include unequivocal integration . . .

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

(citations omitted). As the language of the settlement 

agreement clearly indicates an intention by both parties to 

integrate this agreement into the divorce judgment, the trial 

court had subject matter jurisdiction to make this

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

parties presented their Agreement to the court for its approval, 

and this submission is sufficient to bring it within the 

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

overruled.

III.

Thirdly, defendant argues that he cannot be held in 

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

disagree.

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

agreement is enforceable through the court's contempt powers. 

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

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

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

[A] party to a consent order like the one 

before us may move for the trial court to 

exercise its contempt powers to enforce that 

consent order. Contempt, however, may only 

be found upon a showing that the party in 

noncompliance with the consent order acted 
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willfully, and was capable of complying with 

the consent order.

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

(2011). 

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

subject matter jurisdiction to issue the 3 February 2010 order; 

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

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

numerous findings of fact that defendant acted willfully in 

violating the terms of the order and that defendant had the 

financial resources available to comply with the order. The 

trial court then made the following conclusions of law: 

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

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

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

. shall result in Defendant being ordered into custody of the 

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

the appropriate findings of fact and conclusions of law required 

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

overruled.

Affirmed.

Judges STEPHENS and DILLON concur. 

Report per Rule 30(e).
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