Francis J. FUCHS, Jr.
v.
Virginia F. FUCHS.
No. 400.
Supreme Court of North Carolina.
December 11, 1963.W. Scott Buck, Winston-Salem, for plaintiff appellant.
Clyde C. Randolph, Jr., Winston-Salem, for defendant appellee.
DENNY, Chief Justice.
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 the 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 affidavit 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 said divorce is without legal effect and is invalid for the reason 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 is bigamous and that plaintiff is under no legal obligation to support his purported second wife and her 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 respect 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.
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.
*491 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 the last cited case, we said: "The provisions of a valid separation agreement, including a consent judgment based thereon, can not 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. 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 plaintiff and the defendant having been divorced, the defendant is not entitled to alimony, and she does not seek such in this case. 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 between 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. They 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 court. Story v. Story, supra; State v. Duncan, 222 N.C. 11, 21 S.E.2d 822.
However, we hold that where parties 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 a change in conditions or of the need for such increase, particularly when the increase is awarded solely 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 said: "Ordinarily, in entering a judgment for the support of a minor child or children, the ability to pay as well as the needs of such child or children will be taken into consideration. Such decree is subject to alteration upon a change of circumstances affecting 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 ex rel. Gershman v. Gershman, 181 Pa.Super. 76, 122 A.2d 813, the husband and wife entered into a separation agreement in which it was agreed that the wife was to have custody of the two minor children born of the marriage. These children at the time were about six and two years of age. A consent order was entered in the Municipal Court of Philadelphia against the husband in the sum of $50.00 per week for the support of the two minor children. This amount was identical with that mutually agreed upon for the support of these children and incorporated in the separation agreement. Thereafter, the parents were divorced. Later, the wife petitioned the court to increase the amount for the support of these children. The court, upon proof that the take-home pay of the father of the children had increased, entered an order granting a small increase *492 in the weekly allowance for the support of the children. Upon appeal, the Court said: "There is nothing in this record indicating the necessity for any unusual expenditure in the maintenance of these children. * * Respondent has remarried and now has a wife, and another infant child by this marriage, to support. In determining the amount of an order for the support of children a reasonable allowance should be made for the living expenses of their father in the light of his earnings. Com[monwealth] ex rel. Bush v. Bush, 170 Pa.Super. 382, 86 A.2d 62. The fact that respondent, after complying with the support order, had but $69 left each week, for the support of his present family, was given no consideration in this proceeding. Moreover, Judge Willits considered that respondent's basic liability was fixed by the agreement at $50 per week and ordered the respondent 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 law in the order. * * * In a support proceeding the issue before the court involves a consideration of the needs of the children, and an order for their maintenance in an amount, fair and not confiscatory in the light of the father's earning ability. * * * The needs of the children were not considered in this case and no testimony was taken on that question." The order from which the appeal was taken was set aside and the original order reinstated.
In our opinion, the appellant herein is entitled to another hearing in which the court will take into consideration the earnings of the plaintiff and his living expenses as well as the needs of these minor children. 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 the 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 and remanded.