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NO. COA98-1583 NORTH CAROLINA COURT OF APPEALS Filed: JOE CAMERON NAPIER, Plaintiff, v. DOTTIE SOUTHERN NAPIER, Defendant. Appeal by defendant from judgment dated 30 October 1998 by Judge William T. Graham in Forsyth County District Court. in the Court of Appeals 21 September 1999. Morrow Alexander Tash Long & Kurtz, by C.R. "Skip" Long, Jr., for plaintiff-appellee. Stowers & James, P.A., by Paul M. James, III, for defendantappellant. GREENE, Judge. Dottie Southern Napier (Defendant) appeals from the dismissal of her counterclaim for alimony, asserted in response to a complaint for an absolute divorce filed by Joe Cameron Napier (Plaintiff). The Plaintiff and Defendant were married on 27 February 1965 and separated on or about 1 June 1994. On 1 June 1994, at a time Heard 19 October 1999

when the parties "continue[d] to reside together," and after having "reached an agreement with regard to their respective property rights arising out of the marriage" and "pursuant to North Carolina General Statutes Section 50-20(d)" they entered into a "Property Agreement" (the Agreement) dividing the real and

personal property owned by them. following pertinent language:

The Agreement also included the

ARTICLE I: PROPERTY . . . . 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. It is the intention of the parties that henceforth there shall be, as between them, only such rights and obligations as are specifically provided for in this Agreement, and the right of action for divorce. . . . . ARTICLE II: GENERAL PROVISIONS Construction: This Agreement is not an agreement between the parties to obtain a divorce. The same is an agreement settling their property and marital rights. . . . . Representation by counsel: . . . Both parties have been fully advised of their rights and obligations arising from their marital relationship . . . . Each party understands that the agreements and obligations assumed by the other are assumed with the express understanding and agreement that they are in full satisfaction of all rights which each of them now has or might hereafter or otherwise have in the property or estate of the other and in full satisfaction of all obligations which each of them now has or might hereafter or otherwise have toward the other. (emphases added). In the judgment of the trial court, it concluded that the

"provisions of the . . . Agreement operate as a bar so as to prevent the Defendant from pursuing her claims against the Plaintiff for alimony."

_______________________________ The dispositive issues are whether Defendant's execution of the Agreement constitutes a waiver of her alimony rights: (I) within the meaning of section 52-10.1; and/or (II) within the meaning of section 52-10. Defendant contends alimony can be waived only pursuant to a section 52-10.1 separation agreement and the waiver language must be explicit. In this case, Defendant asserts, the Agreement does

not constitute a section 52-10.1 separation agreement and even if it did, there is no explicit language waiving alimony. Plaintiff

first contends alimony, as a property right, can be waived in a section 52-10 contract between a married couple and it is not, therefore, necessary that the agreement qualify as a separation agreement. Alternatively, Plaintiff contends the Agreement

qualifies as a section 52.10.1 separation agreement and the waiver provisions are sufficiently explicit. I Married couples are authorized to execute separation agreements, N.C.G.S.

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