Fuchs v. Fuchs
133 S.E.2d 487
N.C.
1963
Check Treatment
DeNNY, C.J.

It clearly 'appears from the record herein that the plaintiff .and the defendant were legally divorced in an •action duly instituted in the Superior Court of Forsyth County, North Carolina, by ■a decree entered in said action on 28 May 1962; that the motion filed in the cause for’ an increase in the allowance for the support of the minor’ children born of the marriage between the plaintiff and the defendant was filed as a motion in the cause in said divorce action as provided by G.S. 50-13. Weddington v. Weddington, 243 N.C. 702, 92 S.E. 2d 71; Story v. Story, 221 N.C. 114, 19 S.E. 2d 136.

Therefore, the motion to dismiss tlhe defendant’s motion on the ground that the court 'below had no jurisdiction to hear the matter is without merit, and this assignment of error is overruled.

The plaintiff assigns as error the refusal of the court below to. strike all of paragraphs 15, 16 and 17 from the defendant’s motion in the cause and in admitting in evidence the .affidаvit of T. F. Spillman in support of said 'allegations.

These allegations are to the effect that plaintiff’s present wife has a minor child by a previous marriage to one T. F. Spillman; that Dorothy J. Spillman, the wife of T. F. Spillman, obtained a “quickie” divorce in Nevada; that ©aid divorce i© without legal effect and is invalid for the reasоn that process was never ‍​​​​​‌​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌‌‌​​​​‍served on T. F. Spillman and that he made no voluntary appearance in said action through counsel or otherwise. It is further alleged that the marriage between the plaintiff and. Dorothy J. Spillman iis bigamous and that plaintiff is under no legal obligation to support his purported second wife and hеr minor child.

The court below denied the motion to strike .but held the questions raised in the allegations complained of did not require a .ruling with reispect to the validity of the marriage between the plaintiff and Dorothy J. Spillman, and assumed that the plaintiff is legally obligated to .support himself, his present wife, the former’ Dorothy J. Spillman, and her 8-year-old-child. j

In the hearing below, the court may not have been prejudiced by the above allegations. However, in our opinion, these allegations not being material to -a decision in connection with the relief sought, there being no contention that .plaintiff is not financially able to provide adequate support for his .two minor children by .'his first marriage, should have been stricken and the affidavit of T. F. Spillman excluded from evidence. G.S. 1-153; Council v. Dickerson’s, Inc., 233 N.C. 476, 64 S.E. 2d 554. This assignment of error is sustained.

*639 The right of a married woman to support 'and maintenance is held in this jurisdiction to .be a property right. The right of support being a property right, a wife may release such right by contract in the manner set out in G.S. 52-12. Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235, and cited cases.

In thе last cited case, we said: “The provisions of a valid separation agreement, including -a consent judgment biased thereon, cannot 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, arе 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 рlaintiff and the defendant having been divorced, the defendant i's not entitled to alimony, 'and ©he does not seek such in this .ease. She must rely upon her rights under the terms, of the separation agreement for her own support and maintenance.

We are advertent to. the fact that no agreement or contract betweеn husband and wife will .serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. Thеy 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 сourt. Story v. Story, supra; S. v. Duncan, 222 N.C. 11, 21 S.E. 2d 822.

However, we hold that Where panties to a separation agreement agree upon the ‍​​​​​‌​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌‌‌​​​​‍amount for the support and maintenance of their minor children, there is <a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. We further hold that the court upon motion for an increase in such ■allowance, is not warranted in ordering an increase in the absence of any evidence of а change in conditions or of the need for such increase, particularly when the marease is awarded isolely on the ground that the father’s income has increased, therefore, he -is able to pay a larger amount.

In the case of Bishop v. Bishop, 245 N.C. 573, 96 S.E. 2d 721, this Court ©aid: “Ordinarily, in entering a judgment for the support of a minor child or children, the ability to pay as wеll as the needs of such *640 child or 'children, will -be .taken into consideration. Such decree is subject to alteration upon a change of circumistamces аffecting the welfare of the child or children. G.S. 50-13; Griffin v. Griffin 237 N.C. 404, 75 S.E. 2d 133; Hardee v. Mitchell, supra (230 N.C. 40, 51 S.E. 2d 884); Story v. Story, supra.”

In Commonwealth v. Gershman, 181 Pa. Super. 76, 122 A. 2d 813, the ihusiband and wife entered into a separation agreement in which it was agreed that toe wife was ifco have custody of the two minor children born of toe marriage. These children at toe tone were about six and two years of age. A consent order was entered in toe Municipal Court of Philadelphia against toe husband in toe sum of $50.00 per week for the support of the two. minor 'children.. This amount was identical with that mutually agreed upon for toe support of these 'children and incorporated in toe separation agreement. Thereafter, toe parents were divorced. Later, toe wife petitioned toe court to increase the amount for toe support of these ‍​​​​​‌​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌‌‌​​​​‍children. The court, upon proof that thе take-home pay of the father of toe children had increased, entered an order granting a small increase in toe weekly allowance for tоe support of toe children. Upon .appeal, the Court said: “There is nothing in this record indicating toe necessity for -any unusual expenditure in toe maintenаnce of these .children. * ® ® Respondent has remarried and now has a wife, .and another infant 'child by tods marriage, to. support. In determining toe amount of an order for the support of children a reasonable allowance should 'be made for the living expenses of toeir father in the light of his earnings. Com. ex rel. Bush v. Bush, 170 Pa. Super. 382, 86 A. 2d 62. The faсt that respondent, after complying with toe support order, had but $69 left each week, for toe support of his present family, was given no consideration in this рroceeding. Moreover, Judge Willits considered that respondent’s basic liability was fixed by toe agreement at $50 per week and ordered toe respondеnt to pay more, on a showing of an increase in weekly earnings, and on that ground alone. The .increase is trivial in amount but there is error of llaw in toe order. * In а support proceeding toe issue before the court involves a consideration of toe needs of toe children, and an order for toeir maintеnance in an amount, fair and not confiscatory in the light of the fatoaris' earning ability. * r * The needs of the children were not considered -in this case 'and no. testimоny was taken on ■that question.” The order from which the appeal was taken was set aside and toe original order reinstated.

In our opinion, toe appellant herein is entitled to. another hearing in Which the court will take into1 consideration the earnings of the plaintiff 'and hiis living expenses a© well as the needs of these minor dhil- *641 dren. Moreover, we do not approve the method used in the court below in 'arriving at the amount awarded for the support of the minor 'children involved -herein.

Furthermore, the order making the increased -allowance retroactive to and including February 1963, without evidence of some emergency situation that required ‍​​​​​‌​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌‌‌​​​​‍the -expenditure -of sums in excess of the amounts paid -by tire plaintiff for the support of his minor -children, is neither warranted in law nor equity.

The order entered in the hearing below is vacated -and the cause remanded for further findings -and determination, -in accord with this opinion.

Error & remanded.