Wyatt v. Wyatt

218 S.E.2d 194 (1975)

27 N.C. App. 134

Charles M. WYATT v. Judy P. WYATT.

No. 7525DC369.

Court of Appeals of North Carolina.

October 1, 1975.

*195 John H. McMurray, Morganton, for plaintiff appellee.

Byrd, Byrd, Ervin & Blanton, P. A., by Joe K. Byrd, Morganton, for defendant appellant.

MARTIN, Judge.

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 *196 of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963). However, no agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court. The ultimate object is to secure support commensurate with the needs of the child and the ability of the father to meet the needs. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). The welfare of the child is the "polar star" in the matters of custody and maintenance.

The trial court erred in holding that the parties were bound by the separation agreement since it had found as a fact that the child is substantially in need of maintenance and support from her father and that her father has the present ability to support his daughter.

The case is remanded for further proceedings in accordance with this decision.

Remanded.

BRITT and HEDRICK, JJ., concur.