Mary F. DAVIS
v.
Herbert Lee DAVIS, Jr.
No. 197.
Supreme Court of North Carolina.
January 20, 1967.*309 Rountree & Clark, Wilmington, for plaintiff appellant.
Poisson & Barnhill, Wilmington, for defendant appellee.
BOBBITT, Justice.
During oral argument, it became apparent there was a misunderstanding as to whether the cause was calendared for final hearing or for hearing on a motion for alimony and counsel fees pendente lite.
The evidence before Judge Cowper, offered by plaintiff, consists of an affidavit by plaintiff and of plaintiff's testimony, on direct and cross-examination. The only evidence offered by defendant (Exhibit D-1) consists of the summons, the sheriff's return of service and the complaint (identified by plaintiff) in plaintiff's action for absolute divorce commenced July 26, 1962, in the Circuit Court of Duval County, Florida, In Chancery, which action, according to plaintiff's testimony, was abandoned when plaintiff's counsel negotiated with defendant the terms of the separation agreement.
Plaintiff states in her brief, as the question presented by her appeal, the following: "Is a separation agreement between husband and wife executed in Florida just prior to the wife's return to North Carolina to live, as known to the parties, but entered into while the parties were living in Florida and valid under Florida law, enforceable in this state in the wife's action for alimony without divorce, when such contract did not comply with GS 52-12 providing for the privy examination of the wife and a certificate of the examining officer that the contract is not unreasonable or injurious to her?"
The issuable facts raised by the pleadings in an action for alimony without divorce under G.S. § 50-16 must be submitted to and passed upon by a jury before a judgment granting permanent alimony may be entered. Crews v. Crews, 175 N.C. 168, 95 S.E. 149. However, in respect of allowances for alimony and counsel fees pendente lite, "the allowances pendente lite form no part of the ultimate relief sought, do not affect the final rights of the parties, and the power of the judge to make them is constitutionally exercised without the intervention of the jury." Peele v. Peele, 216 N.C. 298, 4 S.E.2d 616.
Upon the record before us, it must be considered the cause was before Judge Cowper for hearing solely with reference to allowances for alimony and counsel fees pendente lite, not for final determination and judgment.
Under the North Carolina statute then codified as G.S. § 52-12 and the decisions of this Court, a separation agreement entered into in September 1962 was void ab initio unless it complied with these statutory requirements: That "such contract (be) in writing, and * * * duly proven as is required for the conveyances of land; and (that) such examining or certified officer shall incorporate in his certificate a statement of his conclusions and findings of *310 fact as to whether or not said contract is unreasonable or injurious" to the wife. Daughtry v. Daughtry, 225 N.C. 358, 34 S.E.2d 435, and cases cited; Bolin v. Bolin, 246 N.C. 666, 99 S.E.2d 920, and cases cited. Under said statute, "(t)he certificate of the officer shall be conclusive of the facts therein stated," but "may be impeached for fraud as other judgments may be." By virtue of Chapter 878, Session Laws of 1965, statutory provisions of like import are now codified as G.S. § 52-6.
Plaintiff contends the separation agreement is void and of no avail to defendant as a defense in this action. Unquestionably, if it had been executed in North Carolina when the husband and wife were residents of and domiciled in this State, it would be void ab initio because not in compliance with said North Carolina statute. However, it appears clearly from the pleadings, the affidavit of plaintiff and the testimony of plaintiff that the separation agreement was signed in Florida when plaintiff and defendant were residents of and domiciled in Florida.
The general rule, well established in this jurisdiction, is that the validity and construction of a contract are to be determined by the law of the place where it is made. Cannaday v. Atlantic Coast Line R. R., 143 N.C. 439, 55 S.E. 836, 8 L.R.A., N.S., 939; Roomy v. Allstate Ins. Co., 256 N.C. 318, 123 S.E.2d 817; Cocke v. Duke University, 260 N.C. 1, 8, 131 S.E.2d 909, 913; 16 Am.Jur.2d, Conflict of Laws § 39; 15A C.J.S.Conflict of Laws § 11(2); Restatement, Conflict of Laws § 332 et seq.
We are advertent to the decisions holding that, with reference to contracts providing for performance in another state, the law of the place of performance governs generally or as to matters relating to performance. 15A C.J.S. Conflict of Laws § 11(3); 16 Am.Jur.2d, Conflict of Laws § 40; Restatement, Conflict of Laws § 355 et seq. Suffice to say, our research has disclosed no decision in which the "place of performance" rule has been applied to a separation agreement. The separation agreement under consideration implies the wife intended to leave Florida with the children and take up residence in North Carolina. However, she was not required to do so; and defendant's obligation to make the stipulated payments for her support was general and unconditional, whether she resided in Florida, North Carolina or elsewhere.
The conclusion reached is that the validity and construction of the separation agreement are to be determined by the law of Florida.
Although plaintiff concedes the validity of the separation agreement under Florida law, she contends such agreement cannot be enforced or relied upon in North Carolina because it conflicts with the public policy of this State as declared in the North Carolina statute then codified as G.S. § 52-12.
The extent to which the law of one state will be recognized and enforced in another depends upon the rule of comity. Howard v. Howard, 200 N.C. 574, 158 S.E. 101; 16 Am.Jur.2d, Conflict of Laws § 4; 15A C.J.S. Conflict of Laws § 3(3). In 16 Am.Jur.2d, Conflict of Laws § 4, this statement appears: "The general rule is that things done in one sovereignty in pursuance of the laws of that sovereignty are regarded as valid and binding everywhere; and, vice versa, things invalid where done are invalid everywhere."
"It is thoroughly established as a broad general rule that foreign law or rights based thereon will not be given effect or enforced if opposed to the settled public policy of the forum." 15A C.J.S. Conflict of Laws § 4(4)a. Accord: 16 Am.Jur.2d, Conflict of Laws § 51; Howard v. Howard, supra; Ellison v. Hunsinger, 237 N.C. 619, 625, 75 S.E.2d 884, 889, and cases cited; Gooch v. Faucett, 122 N.C. 270, 29 S.E. 362, 3 L.R.A. 835; Cannaday v. Atlantic Coast Line R. R., supra; Burrus v. Witcover, 158 N.C. 384, 74 S.E. 11, 39 L.R.A.,N.S., 1005.
*311 In Howard v. Howard, supra, Adams, J., for this Court, states: "(T)he fact that the law of two states may differ does not necessarily imply that the law of one state violates the public policy of the other." The opinion notes: "Application of the principle that foreign laws will not be given effect when contrary to the settled public policy of the forum is often made in a certain class of cases, such, for example, as prohibited marriages, wagers, lotteries, racing, contracts for gaming or the sale of liquor, and others." Accord: 15A C.J.S. Conflict of Laws § 4(4)b; 16 Am.Jur.2d, Conflict of Laws § 52.
There remains for consideration whether recognition or enforcement of the separation agreement would contravene the settled public policy of North Carolina.
In Collins v. Collins, 62 N.C. 153, decided in 1867, it was held that "articles of separation between husband and wife, voluntarily entered into by them, either in contemplation of or after separation, are against law and public policy, and will not be enforced in this court." Changes in our public policy resulting in large measure from subsequently enacted statutes effecting radical changes in respect of the status and rights of married women, have been reviewed in prior decisions. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327; Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460. In Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235, Denny, C. J., stated that this Court, since Archbell v. Archbell, supra, "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." Higgins, J., in Tripp v. Tripp, 266 N.C. 378, 146 S.E.2d 507, in accord with cases cited, said: "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 connection, see 2 Lee, North Carolina Family Law, § 188.
To be valid under North Carolina law, the separation agreement "must be reasonable, just, and fair to the wife,having due regard to the condition and circumstances of the parties at the time it was made." Smith v. Smith, supra; Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413. A separation agreement is invalid if "unreasonable or injurious" to the wife. When a separation agreement is executed in North Carolina by persons residing and domiciled here, our statute provides for the determination of this essential prerequisite to validity by the officer who takes the acknowledgment, based upon an examination of the wife separate and apart from her husband, and requires that the officer set forth his findings and conclusions in his certificate.
A separation agreement executed in Florida by persons residing and domiciled in Florida and valid under Florida law will not be rejected as void in North Carolina solely because of failure to comply with the quoted provisions of the North Carolina statute now codified as § G.S. § 52-6. Such a separation agreement, if and when attacked in a North Carolina court, will be recognized as valid and enforceable here unless it is alleged and established in our Court that such agreement, having due regard to the condition and circumstances of the parties at the time it was made, was unreasonable or injurious to the wife. A determination of the question of fact so presented must be made by the presiding judge, with the burden of proof on the party attacking the validity of such agreement. If it be found as a fact upon competent evidence that the agreement when executed was unreasonable or injurious to the wife, then it will not be recognized as valid and enforced in this State. If it be found as a fact it was not unreasonable or injurious to *312 the wife, it will be recognized as valid and enforced as if in full compliance with the North Carolina statute. The settled public policy of North Carolina is concerned with substance rather than form.
Our research discloses a Florida statute, 5 Florida Statutes Annotated § 65.15, providing, inter alia, for modification of a separation agreement in respect of the amount of the payments the husband is required to make for the support of the wife by court action in Florida. Since this statute is not discussed or referred to in either brief, we express no opinion as to its significance, if any, in relation to the present case. However, it seems a subject worthy of exploration by counsel prior to the next hearing in superior court.
It is noted that in North Carolina separation agreements "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." Hinkle v. Hinkle, 266 N.C. 189, 195, 146 S.E.2d 73, 77. See 2 Lee, North Carolina Family Law, § 189; § 152, pp. 223-225.
It should be noted that we express no opinion as to the sufficiency of the allegations of the complaint in respect of the alleged coercive conduct of defendant prior to execution of the separation agreement.
In our view, the order from which plaintiff appeals was entered under misapprehension of the applicable law. Accordingly, the order, in respect of the portion thereof which dismissed the action, including the findings of fact and conclusions of law on which it is based, is vacated; and the cause is remanded for further proceedings not inconsistent with this opinion. 1 Strong, N.C. Index, Appeal and Error § 55. The portion of the order providing "that the defendant's counterclaim for divorce be retained upon the docket of this Court for trial" is not involved in or affected by this appeal.
Error and remanded.