Kiger v. Kiger

128 S.E.2d 235 (1962)

258 N.C. 126

Betty Caudle KIGER v. Jasper Thomas KIGER.

No. 379.

Supreme Court of North Carolina.

November 21, 1962.

*237 R. Kason Keiger, Winston-Salem, for plaintiff appellee.

Deal, Hutchins & Minor, and Edwin T. Pullen, Winston-Salem, for defendant appellant.

DENNY, Chief Justice.

Since the decision in Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, this Court has upheld separation agreements whenever a fair, just and reasonable provision has been made for the wife, having due regard to the condition and circumstances of the parties at the time the agreement was made, and when the agreement has been executed in the manner required by law.

The right of a married woman to support and maintenance is held in this jurisdiction to be a property right. Archbell v. Archbell, supra; Walton v. Walton, 178 N.C. 73, 100 S.E. 176; Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460; Daughtry v. Daughtry, 225 N.C. 358, 34 S.E.2d 435; Bolin v. Bolin, 246 N.C. 666, 99 S.E.2d 920.

The right of support being a property right, the wife may release such right by contract in the manner set out in G.S. § 52-12. In the acknowledgment and execution of such contracts, the certificate of the officer is made by statute conclusive of the facts therein stated but may be impeached for fraud as other judgments may be. G.S. § 52-12, subsection (b).

The provisions of a valid separation agreement, including a consent judgment based thereon, can not be ignored or set aside by the court without the consent of the parties. Such agreements, including consent judgments based on such agreements with respect to marital rights, however, are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118. Otherwise, the parties to a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of the consent judgment entered thereon. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Brown v. Brown, 205 N.C. 64, 169 S.E. 818; Turner v. Turner, 205 N.C. 198, 170 S.E. 646; Davis v. Davis, 213 N.C. 537, 196 S.E. 819; Holden v. Holden, supra.

The agreement involved herein has not been attacked by the plaintiff on the ground of fraud or coercion in its procurement or execution, consequently, so long as it stands unimpeached, the parties are bound thereby.

We do not concur in the plaintiff's contention that the case of Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, supports the ruling of the court below in awarding the plaintiff alimony and counsel fees, notwith-standing the fact that a separation agreement had been entered into. In the Butler case the separation agreement contained the following provision: "Each party hereto reserves the right to appeal to the Resident Judge of the Second Judicial District of North Carolina for a revision in the amount to be paid to the said wife, either for the joint support and maintenance of the said wife and the said Robert Allen Butler, or solely for the support and maintenance *238 of said wife." The Butler case is not controlling on the facts presented on this record.

Likewise, we do not concur in the view of plaintiff's counsel to the effect that the separation agreement executed by the parties to this action left the question of support open for the court to adjudicate.

We hold that it is implicit in the separation agreement that the wages earned by the respective parties after the separation, and any profits realized from any business or profession, were to be for the use and benefit of the party earning the wages or making the profits, "as if he (or she) were sole and unmarried." This language runs counter to the plaintiff's contention. Furthermore, the wife, the plaintiff herein, expressly agreed to the following statement in the separation agreement: "The said wife agrees that in the event a suit for divorce should be instituted either by the wife or the husband, she will not pray the court, or otherwise ask for counsel fees, alimony pendente lite, or subsistence of any character for herself." (Emphasis added.)

Therefore, we hold that the plaintiff is bound by the terms of the separation agreement dated 16 September 1961 and the court below was without power to award alimony and counsel fees to plaintiff in the absence of an attack on the validity of the separation agreement.

It may be that the defendant is infatuated with another woman, as alleged in the complaint, which is denied in the answer, even so, the evidence on this record tends to show that beginning with November 1961 and up to the time of the hearing below, the defendant, with a net income of $268.67 per month, has expended $251.14 each and every month for the support of his minor children or in making payments on indebtedness outstanding against the real and personal property conveyed to the plaintiff under the terms of the separation agreement, leaving only $17.53 a month from his net earnings for his own living expenses, which has made it necessary for the defendant to move in and live with his father and to depend on his father for room and board. Cf. Davidson v. Davidson, 189 N.C. 625, 127 S.E. 682.

The order entered below is set aside except as to custody, about which there is no controversy. The additional relief sought will be denied unless the plaintiff recasts her pleadings and raises questions not now raised by the present pleadings.

Error and remanded.