Calhoun v. Calhoun

Annotate this Case

172 S.E.2d 894 (1970)

7 N.C. App. 509

Margaret L. CALHOUN v. Byron C. CALHOUN.

No. 7018DC140.

Court of Appeals of North Carolina.

April 1, 1970.

*895 William E. Comer, Greensboro, for plaintiff appellant.

Block, Meyland & Lloyd, by A. L. Meyland, Greensboro, for defendant appellee.

MORRIS, Judge.

Plaintiff alleges that she was under sedation at the time she executed the *896 agreement and did not understand what she was signing. Even if this were sufficient allegation of incompetency, it is admitted by her that she was represented by counsel. This is said in Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603 (1965), and approved in McLeod v. McLeod, 266 N.C. 144, 146 S.E.2d 65 (1966):

"`The presence of able counsel for the wife at the conference resulting in a separation agreement, and at the time she executes and acknowledges a deed of separation, "negatives the inference or contention that she was incompetent to understand the arrangements, and was ignorant of its terms and did not know what she was doing, (citing authorities). * * *"' Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714."

It is true that one of the requisites of a valid separation agreement is that it be reasonable, just, and fair to the wifedue regard being given to the condition and circumstances of the parties at the time. Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148 (1945). Plaintiff urges that she alleges in her complaint that the deed of separation is "neither adequate, fair nor equitable" and that the demurrer admits all of the allegations of the complaint. "`The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of the facts contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law.'" (Citations omitted.) (Emphasis supplied.) Smith v. Smith, supra. The assertion that the agreement is not fair, adequate, or equitable is a conclusion of the pleader and not admitted by the demurrer.

The agreement itself is not a part of the record before us. Defendant has included it in his brief as an "appendix" thereto. This is not approved, nor do we consider defendant's argument that the deed of separation conforms to the requirements of G.S. § 52-6. We have before us on this record only the complaint, the demurrer, and the answer thereto. The deed of separation is not made a part of any pleading. Plaintiff does not allege that it did not comply with the provisions of G.S. § 52-6. Plaintiff does admit that the deed of separation was signed by the parties and is in effect until set aside or modified and that defendant has complied with its terms.

Plaintiff further contends that that portion of the agreement relating to payments to the son should be set aside and that she should recover of the defendant at least $4500 expended by her for the son's support. The complaint is silent as to any change in conditions necessitating increased support nor is there any allegation of facts to support the necessity of any expenditures by the plaintiff. In Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963), the Supreme Court, speaking through Denny, C.J., said:

"However, we hold that where parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. We further hold that the court upon motion for an increase in such allowance, is not warranted in ordering an increase in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on the ground that the father's income has increased, therefore, he is able to pay a larger amount."

We note that at the time of the execution of the deed of separation, the minor son was 16 years of age. The terms of the agreement were that payments to him would continue until he reached 18 years of age or entered college, whichever event occurred first. Simple mathematics indicate that the son would be 23 years of age at the time of the institution of this action. Under these circumstances, the principle *897 enunciated in Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371 (1958), that no agreement or contract between husband and wife will serve to deprive the court of its inherent authority to protect the interests and provide for the welfare of the minor children of the marriageis of no avail to this plaintiff. We assume no action was brought on behalf of the son, during his minority, for support.

We conclude that the plaintiff has not stated a cause of action and the court's action in allowing the demurrer and dismissing the action was entirely proper.

Affirmed.

MALLARD, C. J., and VAUGHN, J., concur.