Richardson v. Richardson
135 S.E.2d 532
N.C.
1964
Check Treatment
Parker, J.

DEFENDANT’S APPEAL

Defendant assigns as error the disallowance of his demurrer ore tenus to the complaint. The record does not state the ground for the demurrer ore tenus. However, defendant in his brief contends it should be sustained on two grounds: (1) plaintiff has no legal capacity to maintain the action, and (2) want of jurisdiction in the Mecklenburg County superior court.

There is no allegation or contention on this appeal, or on the former appeal, that there was any fraud or duress in the execution of the deed of separation, or that either party thereto lacked mental capacity. The complaint in the instant case alleges in substance that on 29 February 1960 plaintiff and defendant executed a deed of separation in which defendant agreed to pay to plaintiff for the support and maintenance of the children born of the marriage between them the sum of 1300 a month, and that defendant is in arrears in such payments in the sum of |3,875 as of November 1962. Wherefore, she prays that she recover from defendant the sum of $3,875 for the support of their three minor children. Under our decisions plaintiff has legal capacity to maintain this action upon the deed of separation to recover from defendant the alleged arrears in payments of money due her by him under the deed of separation for the support of the three minor children born of the marriage between them. Murphy v. Murphy, 261 N.C. 95, 134 S.E. 2d 148; Goodyear v. Goodyear, 257 N.C. 374, 126 S.E. 2d 113; Campbell v. Campbell, 234 N.C. 188, 66 S.E. 2d 672; 67 C. J. S., Parent and Child, sec. 20, e, p. 710. Plaintiff is not the beneficiary of the recovery of the amount in arrears under the deed of separation, if there is any; she is merely trustee for the three minor children. Goodyear v. Goodyear, supra. In this jurisdiction a trustee of an express trust may sue without joining his cestui que trust. G.S. 1-63; Ingram v. Insurance Co., 258 N.C. 632, 129 S.E. 2d 222.

Defendant contends in his brief that there is want of jurisdiction in the superior court of Mecklenburg County. The complaint in the instant case alleges plaintiff is a resident of Mecklenburg County, North *528 Carolina, and defendant is a resident of Lincoln County, North Carolina. The subject matter of the action is to recover arrears of payments due to be paid to plaintiff by defendant for the support of the minor children bom of the marriage between them under the deed of separation entered into by and between them. A demurrer to a complaint on the ground that the court has no jurisdiction of the person of the defendant, or of the subject of the action, will be sustained when, and only when, such defect appears upon the face of the complaint. G.S. 1-127, 1; Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E. 2d 914; McIntosh, N. C. Practice and Procedure, 2d Ed., Vol. 1, sec. 1184. The superior court is one court having statewide jurisdiction. Lovegrove v. Lovegrove, 237 N.C. 307, 74 S.E. 2d 723. No want of jurisdiction appears upon the face of the complaint in the instant case.

Judge Clarkson properly overruled defendant’s demurrer ore terms to the complaint.

Defendant’s second and last assignment of error is: “The court erred in signing the judgment dated September 18, 1963, appearing of record, the same being contrary to the law and facts.”

The parties stipulated before Judge Clarkson: * * this suit is brought by the plaintiff upon the alleged contract, and not for anything alleged to be due to be paid under Judge Patton’s Order.” The parties further stipulated before Judge Clarkson: “It is agreed that the Separation Agreement called for a total sum of payments for the support of the children up to the date of Judge Patton’s Order, May 24, 1962, to be in the sum of $8,300.00, and that as of that date Van V. Richardson, Jr. paid for the support of the said children the total sum of $4,980.00, which leaves a difference of $3,320.00.”

There is no merit in defendant’s contentions that, when plaintiff filed an answer in the divorce action brought against her as defendant by defendant here, she, in that suit, submitted the entire matter of the custody and support of the children born of the marriage between, them to the superior court of Lincoln County and abandoned any right to recover any arrears in payments due under the deed of separation for the support of the children, and thereby made an election of remedies to abandon the provisions of the deed of separation for their support and chose to rely upon an order of the court to enforce allowances for their support, and therefore cannot maintain the instant suit.

Plaintiff here, in her answer in the divorce action, alleged as a further defense and counterclaim in substance: Plaintiff, Van V. Richardson, Jr., is in arrears as of 31 March 1962 in an amount of over $3,-025 in payments required to be made by him under the deed of separation between them for the maintenance and support of their three *529 children, and by way of counterclaim she prays that the court enter an order giving her custody of the three children born of the marriage between them and requiring him to pay the arrears due her by him for the support of the three children under the deed of separation in an amount of not less than $3,025, and further ordering him to pay a reasonable sum each month for their support. Upon motion of defendant in the instant action, who was plaintiff in the divorce action, Judge Patton entered an order striking from the answer in the divorce action the allegations to the effect that plaintiff in the divorce action as of 31 March 1962 is in arrears in the amount of not less than $3,025 in the payments required to be made by him to her for the support of their three minor children under the deed of separation entered into by them, and that she is entitled to a judgment to recover from him that amount. Judge Patton stated in his order striking these allegations that the cause of action set forth in the further answer and counterclaim to recover these arrears of payments due under the provisions of the deed of separation should be brought in an independent action, and is not appropriate as a part of the divorce action. Judge Patton in his order entered in the divorce action, awarding custody of the children to the mother and requiring the father to pay to her $200 a month for their support, made no reference to the amount of not less than $3,025 allegedly in arrears under the deed of separation for the support of the three children.

Defendant’s plea in bar alleged in his answer that he owes plaintiff nothing, because Judge Patton in his order in the divorce action had determined the question of the arrears due by him to plaintiff for the support of the children under the deed of separation, and that the matter is res judicata, is not supported by the facts and is untenable. Jenkins v. Jenkins, 225 N.C. 681, 36 S.E. 2d 233, is in point. In that case the Court held that in an action by a husband against his wife for divorce on the ground of two years’ separation, in which the wife set up in her answer a. separation agreement entered into between them when they were about to separate in which the husband contracted that she should have the care and custody of the two children born of the marriage and that the husband should pay her certain sums for each child with her for their support and asked for a judgment that she recover according to the terms of such agreement, this plea of the wife being ignored by the court and no judgment rendered thereon, though the court rendered a judgment of absolute divorce for the husband, such decree is not res judicata in a subsequent action by the wife against the husband based on the agreement. In this case the trial court held that plaintiff recover of the defendant the amounts due under the contract, and this Court on appeal affirmed.

*530 The Court said in Surratt v. Insurance Agency, 244 N.C. 121, 93 S.E. 2d 72: “The 'whole doctrine of election [of remedies] is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other.’ But ‘the principle does not apply to co-existing and consistent remedies.’ Machine Co., v. Owings, 140 N.C. 503, 53 S.E. 345.”

“To make them inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other. It is the inconsistency of the demands which makes the election of one remedial right an estoppel against the assertion of the other, and not the fact that the forms of action are different.” 28 C. J. S., Election of Remedies, sec. 4, p. 1068.

No reason occurs to us why the assertion in a counterclaim by Georgianna Reeves Richardson in the answer filed by her in the divorce action brought against her by Yan V. Richardson, Jr., that she is entitled to recover from him the arrears due by him to her under the deed of separation entered into by and between them for the support of the three children born of the marriage between them and asking for an order for their support, which claim for a judgment for the arrears was stricken from her answer by motion of her husband and not 'considered by the judge, should bar an independent action by her against her husband to recover the arrears due by him under the deed of separation. Her counterclaim in the divorce action to recover the arrears due under the deed of separation and her independent action to recover these arrears are consistent in theory, and the allegations in the counterclaim do not repudiate and are not repugnant to the allegations in her independent action, the instant suit.

Defendant makes no contention in his brief that Judge Clarkson erred in awarding custody of the children to plaintiff, or that he erred in his third conclusion of law set forth above, which is favorable to him.

On defendant’s appeal we find

No error.

PLAINTIFF’S APPEAL

Plaintiff has one assignment of error as follows: “The Court erred in failing to allow the additional $600.00 claim of the plaintiff.” This assignment of error has reference to Judge Clarkson’s third conclusion of law, which is set forth verbatim above. As stated above, the deed of separation provides for no payment by defendant for the support of plaintiff, his wife.

*531 Plaintiff here, in her answer in the divorce case, alleged that plaintiff, her husband, was in arrears in payments under the deed of separation in an amount of not less than $3,025. And in her further answer in the divorce action, she requested the court to enter an order requiring plaintiff in the divorce action, her husband, to pay a reasonable sum each month for the support of the children in the future. It seems apparent that plaintiff here desired the security of a court order for the support of their children, which she could enforce, if necessary, by contempt proceedings in the event of a wilful failure by her husband to pay the amount for the children’s support ordered by Judge Patton. Judge Patton acceded to her request and entered an order finding that the father’s gross income in 1961 was $5,871.20, and requiring him, pending further orders of the court, to pay to plaintiff here $200 each month for the support of their children. Plaintiff here, defendant in the divorce action, did not except to or appeal from Judge Patton’s order.

In the appeal in the divorce action between the parties here, 257 N.C. 705, 127 S.E. 2d 525, the Court said: “The terms of the separation agreement do not limit the authority of the court to make and enforce such allowances for the support of the children as circumstances may require.”

This Court said in Kiger v. Kiger, 258 N.C. 126, 128 S.E. 2d 235: “The provisions of a valid separation agreement, including a consent judgment based 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, 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.”

Plaintiff contends that, although Judge Patton had authority to order the father to pay less for the support of his children than called for in the deed of separation, his order did not abrogate the deed of separation, and that the plaintiff here in her independent action has the right to recover the difference between the amount called for in the deed of separation of $300 a month and the $200 a month set forth in Judge Patton’s order, which amount is $600.

Judge Patton in fixing the payments to be made by the father for the support of the children at $200 a month, pending the further orders of the court, upon a finding that his gross income in 1961 was $5,871.20, although the deed of separation called for the payment by him of $300 a month for their support, acted pursuant to authority vested in him by our decisions to make and enforce such allowances for the support of *532 the children as circumstances may require, Kiger v. Kiger, supra; Richardson v. Richardson, supra; Story v. Story, 221 N.C. 114, 19 S.E. 2d 136. Judge Patton’s order, there being no exception thereto, is final and binding in fixing the amount to be paid by defendant here for the support of the children, irrespective of the provisions set forth in the deed of separation, and plaintiff is not entitled to recover the difference between the amount required to be paid for the support of the children by Judge Patton’s order and that called for in the deed of separation, amounting to $600. Judge Clarkson’s third conclusion of law is correct in denying plaintiff a recovery of the $600 which she contends is due her under the deed of separation, though the statement in this conclusion of law that the wife “waived her right to recover the full amounts as set forth in the separation agreement” is surplusage.

On plaintiff’s appeal we find

No error.