Hamilton v. Hamilton

89 S.E.2d 417 (1955)

242 N.C. 715

Ann S. HAMILTON v. Heath L. HAMILTON.

No. 241.

Supreme Court of North Carolina.

October 12, 1955.

*419 Sedberry, Clayton & Sanders and Ralph C. Clontz, Jr., Charlotte, for plaintiff.

G. T. Carswell and James F. Justice, Charlotte, for defendant.

DENNY, Justice.

We will not disturb the ruling of the trial judge on a motion to strike unless the appellant can show that the retention or deletion of the allegation or allegations complained of would prejudice the rights of such party. Ledford v. Marion Transportation Co., 237 N.C. 317, 74 S.E.2d 653; Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185. Certainly, the plaintiff will not be prejudiced by the allegation to the effect that the defendant has obtained a divorce since the execution of the separation agreement. It was clearly within the contemplation of the parties at the time the separation agreement was executed that their marriage might thereafter be dissolved in an action for divorce. Howland v. Stitzer, 240 N.C. 689, 84 S.E.2d 167. But the contract does not purport to cancel the monthly payments for the support of the wife in the event a decree of divorce is granted dissolving the marriage, but only upon the date of the remarriage of the wife. Hence, the ruling on the plaintiff's motion to strike will not be disturbed.

As to the demurrer to the defendant's further answer and defense, we think it should have been sustained. We have uniformly held since our decision in Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, 329, Ann.Cas.1913D, 261, that a deed of separation executed by husband and wife, is valid in this State when it is entered into for adequate reasons and is reasonable and fair to the wife and executed in accordance with our statutes. Hoke, J., later Chief Justice, speaking for the Court in Archbell v. Archbell, supra, pointed out that in Collins v. Collins, 62 N.C. 153, the Court had held "`that articles of separation between husband and wife, whether entered into before or after separation, were against law and public policy, and therefore void.'" But in view of the changes in our statutes, Justice Hoke said: "* * * we are constrained to hold that public policy with us is no longer peremptory on this question * * *. This change in our public policy which has been not inaptly termed and held synonymous with the `manifested will of the State' * * *, has been, already recognized in several of our decisions, as in Ellett v. Ellett, * * * 157 N.C. 161, 72 S.E. 861 [39 L.R.A.,N.S., 1135]; Smith v. King, 107 N.C. 273, 12 S.E. 57; Sparks v. Sparks, 94 N.C. 527."

A separation agreement between husband and wife which meets the requirements of our decisions and is executed as required by law, will not be held void as being against public policy because it provides for the support of the wife for life or until her remarriage.

The defendant's exceptions to the order striking out the allegations heretofore discussed are without sufficient merit to be sustained, and are, therefore, overruled.

The assignment of error based on the defendant's exception to the overruling *420 of his demurrer ore tenus to the plaintiff's complaint will not be sustained. An appeal does not lie from an order overruling a demurrer ore tenus. Morgan v. High Penn Oil Co., 236 N.C. 615, 73 S.E.2d 477, and cited cases.

On plaintiff's appeal: Modified and Affirmed.

On defendant's appeal: Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.