Bradshaw v. Smith

269 S.E.2d 750 (1980)

Kathleen BRADSHAW, Individually and Kathleen Bradshaw, Guardian of Charlene Smith, Minor, v. Yvonne S. SMITH, Administratrix of the Estate of Charles Emerson Smith, Deceased.

No. 804SC192.

Court of Appeals of North Carolina.

September 16, 1980.

*751 Paderick, Warrick, Johnson & Parsons by Clifton W. Paderick, Clinton, for plaintiff-appellee.

Holland, Poole & Newman by B. L. Poole, Clinton, for defendant-appellant.

ROBERT M. MARTIN, Judge.

The sole issue before this Court is whether the deed of separation created an obligation to furnish child support which survived decedent's death and became an obligation of his estate. An examination of prior North Carolina case law answers this issue.

Although the common law duty of a parent to support his child terminates at the parent's death, a parent can bind his estate by contract to support the child after his death. The question of whether a contract operates to so obligate a parent's estate is answered by determining the intent of the parties to the contract. Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425 (1971); Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965).

In determining the intent of the parties with regard to this issue, three prior North Carolina cases provide guidance.

In Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964), Justice Sharp (later Chief Justice Sharp) stated that where the parties to a separation agreement provide for contingencies which will reduce the amount of support payments, the court will not rewrite the contract for them. In Church, the separation agreement provided that the father would pay support for the wife and two minor children. Under the agreement, if the wife remarried or if a child died, payments would be reduced by certain amounts. When one of the minor children *752 married, the father contended that the amount of the support payments should be reduced. The court held that ordinary rules governing the interpretation of contracts applied and that the contractual provisions regarding termination of the duty of support were clear and unambiguous. The marriage of the minor child was not a terminating contingency under the agreement.

Layton v. Layton, supra, involved a consent order providing for support of decedent's two minor children. After determining that the primary purpose of the parties in consenting to the order was to fix the amount of support payments (which had been contested), the court held that the father's intent was merely to meet his common law obligations to his children and nothing more. He did not intend to create a debt which survived his death. Appellant contends that Layton supports her position that Smith's estate is not bound by the separation agreement. However, Layton is distinguishable from the case at bar on its facts because the consent order in Layton did not state when the duty to support would terminate and the agreement in the case sub judice did.

The case of Mullen v. Sawyer, supra, which was not cited by plaintiff or defendant, concerned a similar factual situation. In Mullen the father agreed to make certain support payments for his minor children in a consent order which stated:

said payment shall continue monthly until the eldest child reaches the age of 18 years, at which time said payments shall be cut in half and shall continue until the younger of said children reaches the age of 18 years, at which time all such payments due hereunder shall cease.

The father also agreed to "assume the burden of a four year college education for each of said children at the college of his choosing . . ." and upon the occurrence of certain conditions that obligation was to terminate. Id. at 626, 178 S.E.2d at 426-427. As in the case at bar, the consent order was silent regarding the effect of the father's death on his obligation to support. The court held that the father's estate was obligated to make support payments coming due after the father's death to the minor children and to pay their future college expenses. In reaching its decision the court determined that such was the parties' intent in consenting to the order. The court examined Layton, supra, and isolated from that opinion four factors to be considered in determining intent from the contract. They are as follows:

(1) Does the language create a lien upon the father's property? (2) Is there a special consideration in favor of the father? (3) Is there a specific termination time for the payments? (4) Is there an obligation in excess of the common law duty to support? These elements in themselves may not be conclusive, but in the present case they may assist in determining the intent of Dr. Sawyer at the time he signed the consent judgment.

277 N.C. at 630, 178 S.E.2d at 429.

In the case at bar, factors (3) and (4) are met. The agreement states when the payments shall terminate and provides for an obligation in excess of the common law duty to support (to provide hospital insurance for each minor child). Thus it seems clear that when Charles Emerson Smith signed the separation agreement, he intended that his obligation to support his child would continue until she reached eighteen years of age, completed high school, or discontinued her high school education, whichever event happened last. Absent some indication of a contrary intent, where a valid separation agreement requires the father to make child support payments, states terminating contingencies, and is silent as to the effect of the father's death, his estate is bound to provide support payments according to the terms of the agreement. It appears that the majority of the other jurisdictions that have passed on this issue agree with our holding. See Annot., 18 A.L.R.2d 1126, 1131-1133 (1951).

For the reasons stated above, we affirm the judgment of the superior court.

Affirmed.

VAUGHN and WEBB, JJ., concur.