Story v. . Story
19 S.E.2d 136
N.C.
1942
Check Treatment
BaeNhill, J.

The only exception presented for consideration is the exception to the judgment. The plaintiff bottoms his assignment of error primarily upon the contention that the original order constituted a consent judgment of the parties and that by reason thereof it is not subject to modification by the court.

In the consideration of this assignment it must he noted in the beginning that the original order expressly provided that “this cause is retained for further orders upon proper notice.” It must be further noted *116 that while the original order provided that the stipulated payments were to be made “for the use and benefit, support and maintenance” of the defendant and the child, the last order, from which the plaintiff appealed, provided for payment for the support of the child only.

The father is primarily liable for the support of his child both before and after divorce, even where the custody of the child is awarded to the mother, Sanders v. Sanders, 167 N. C., 319, 83 S. E., 490.

Upon the institution of a divorce action the court acquires jurisdiction over any child born of the marriage and may hear and determine questions both as to the custody and as to the maintenance of such child either before or after the final decree of divorce. C. S., 1664; Tyner v. Tyner, 206 N. C., 776, 175 S. E., 144; Sanders v. Sanders, supra.

No agreement or contract between husband and wife will serve to deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by separate agreement or by a consent judgment; In re Albertson, 205 N. C., 742, 172 S. E., 411; Morris v. Patterson, 180 N. C., 484, 105 S. E., 25; Webster v. Webster, 213 N. C., 135, 195 S. E., 362; but they cannot thus withdraw children of the marriage from the protective custody of the court. In re Albertson, supra; Tyner v. Tyner, supra. The child is not a party to such agreement and the parents cannot contract away the jurisdiction of the court which is always alert in the discharge of its duty toward its wards — the children of the State whose personal or property interests require protection. Latta v. Trustees, 213 N. C., 462, 196 S. E., 862. In such case the welfare of the child is the paramount consideration to which even parental love must yield, and the court will not suffer its authority in this regard to be either withdrawn or curtailed by any act of the parties.

Hence, even if we accept the contention of the plaintiff that the order constitutes a judgment by consent, the court below had full jurisdiction to hear the matter on the motion of the defendant and to make the order from which plaintiff appeals.

Furthermore, the plaintiff consented that the cause should be retained for further orders and decrees. He is bound by his own act. It does not now rest with him to challenge the authority of the court to modify the order in accord with the very terms of the agreement as thus expressed.

A careful reading of Webster v. Webster, supra, will disclose that the opinion in that case is not out of accord with our present conclusion. Lentz v. Lentz, 193 N. C., 742, 138 S. E., 12, in so far as it seems to conflict, is expressly overruled.

Plaintiff contends that the court was for a further reason without jurisdiction. He relies upon the language of C. S., 1665, and C. S., *117 1667, as interpreted by this Court in Silver v. Silver, 220 N. C., 191, and the cases therein cited. This contention is without merit. This is not an action under C. S., 1667. The authority of the court below rests in the language of C. S., 1664. Plaintiff raised the issue in his complaint. The plenary jurisdiction of the court was thereby invoked and was properly exercised.

The judgment below is

Affirmed.