Tripp v. Tripp

146 S.E.2d 507 (1966)

266 N.C. 378

Elsie R. TRIPP v. William Henry TRIPP.

No. 618.

Supreme Court of North Carolina.

February 4, 1966.

Wilson, Bain & Bowen, by Edgar R. Bain, Lillington, for plaintiff appellee.

Morgan & Williams, by Robert B. Morgan, Lillington, for defendant appellant.

HIGGINS, Justice.

The plaintiff attached copy of the separation agreement as an exhibit to her complaint. She introduced the instrument in evidence for the purpose of attack. The agreement shows the mutual promises the parties made as consideration for its execution. The plaintiff received all the household furnishings (except those in the *508 defendant's room), monthly payments of alimony for two years, and release of the husband's interest in two tracts of land owned by the plaintiff. The plaintiff agreed if the husband complied with the agreement for two years she would execute a quitclaim deed for her interest in the 23 acres of land which the defendant's parents had deeded to the parties as tenants by the entireties. In her testimony the plaintiff admitted the defendant had fulfilled his obligations according to the agreement. For these reasons the presiding judge was correct in refusing to submit an issue based on the allegation the agreement was without consideration.

On the appeal, counsel for the parties debated the question whether duress, as alleged in the complaint, is sufficient in its vitiating effect to require that the agreement be set aside. A contract between husband and wife falls within a special classification. The law requires the certifying officer to conduct an examination and to determine the contract was duly executed, and to certify that it is not unreasonable or injurious to her. G.S. § 52-12 (now G.S. § 52-6). The certificate is conclusive except for fraud. If we concede duress is a species of fraud embraced within the statute, and if the complaint contained enough factual averments to raise the issue of fraud, even then we are confronted with the question whether the plaintiff's evidence is sufficient to go to the jury.

The plaintiff testified the defendant had assaulted her many times during their married life, especially when he was drinking. He threatened her life if she ever attempted to take any interest in the lands his parents gave them as tenants by the entireties. She was afraid of him for what he might do to her and to the children and for that reason signed the separation agreement. However, on cross-examination she admitted she wanted the separation agreement. "I know my lawyer told me I did not have to sign it, but it was such a pleasure to be rid of him." Since the separation she has obtained an absolute divorce. Hence, if the contract was set aside she would have no further claim for support for herself. The defendant is still responsible for the support of the children. She would be relieved of her obligation to execute the quitclaim deed.

This Court has reviewed many cases in which one party has attempted to set aside a separation agreement, although executed and certified according to the formalities required by G.S. § 52-12, now § 52-6. The recent cases are McLeod v. McLeod, N.C., 146 S.E.2d 65, Van Every v. Van Every, 265 N.C. 506, 144 S.E.2d 603; Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714; Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235, and Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413. When the contract is made in good faith, is executed according to the requirements, and performed on one side, the Court does not look with favor on efforts to set it aside except upon valid legal grounds.

In this case the plaintiff made no complaint until after she had received the benefits under the contract for the full two years. She delayed her objection from the date of the agreement, June 28, 1961, until July 18, 1963. According to her own admission, she went to the clerk's office by herself and signed the agreement, although her attorney had mildly advised her against it. If we treat the conclusory aspects of her complaint as factual averments, nevertheless her evidence of duress is not sufficient to support the issue which the court submitted and which the jury answered. The court at the conclusion of the plaintiff's evidence should have sustained the motion to nonsuit and entered judgment dismissing the action. The judgment entered in the superior court is

Reversed.