Talmadge Gray HINKLE
v.
Ozelle Hodges HINKLE.
No. 455.
Supreme Court of North Carolina.
January 14, 1966.*76 Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Norwood Robinson and Robert Melott, Winston-Salem, for plaintiff.
Craige, Brawley, Lucas & Horton and William T. Graham, Winston-Salem, for defendant.
DENNY, Chief Justice.
The plaintiff in his appeal assigns as error that portion of the order entered below which requires him to pay the defendant for moving costs, attorneys' fees, and rent, in the sum of $4,368.
It is provided in pertinent part in G.S. § 6-21 as follows:
"Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court: * * *
"(4) In actions for divorce or alimony; and the court may both before and after judgment make such order respecting the payment of such costs as may be incurred by the wife, either by the husband or by her from her separate estate, as may be just. * * *
"The word `costs' as the same appears and is used in this section shall be construed to include reasonable attorneys' fees in such amounts as the court shall in its discretion determine and allow."
The plaintiff concedes in his brief that the court was empowered by the above statute to tax the costs against him and to award defendant reasonable attorneys' fees in connection with the custody hearing in the court below. Therefore, on plaintiff's appeal, the question for determination is whether or not on the facts revealed by the record, should the court have allowed the defendant's motion for judgment against the plaintiff for the costs of transporting the defendant's household goods and personal effects from Winston-Salem to Houston, Texas, and from Houston, Texas, back to Winston-Salem, in the sum of $2,490, *77 and for the rent advanced on the house in Houston in the sum of $378.00?
The defendant points out in her brief that at the time of the hearing below, the plaintiff and the defendant were living separate and apart under the terms of a separation agreement dated 5 April 1965; that by this voluntary agreement she was granted "the care and custody of the Children until they shall attain the age of 21 years * * *," and the right to "reside at such * * * places * * * as * * * she may desire, * * *" so long as she did not take "the Children out of the continental limits of the United States of America * * *."
The plaintiff alleged in his motion in the cause in action for absolute divorce that he had complied with every financial requirement he assumed under the provisions of the separation agreement entered into by the parties. This allegation was not controverted in the hearing below.
The question posed is not where the defendant may live, but can she require the plaintiff to pay the costs of transportation and the rental of a house or apartment when she leaves the house conveyed to her under the terms of the separation agreement? Under the terms of the separation agreement, the defendant cannot obligate the plaintiff to pay anything for any purpose other than as provided in the separation agreement. There is nothing in the separation agreement requiring the plaintiff to pay defendant's moving expenses or rental costs, whether she lives in Winston-Salem or elsewhere.
The right of a married woman to support and maintenance is held in this jurisdiction to be a property right. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235, and cited cases. The right of support being a property right, the wife may release such right by contract in the manner set out in G.S. § 52-12, now G.S. § 52-6. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487.
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 agreement, 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. Fuchs v. Fuchs, supra; Kiger v. Kiger, supra; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350; In re Albertson, 205 N.C. 742, 172 S.E. 411. 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.
We hold that, since the separation agreement is in full force and effect except as to the custody of the children, the defendant is not entitled to recover from the plaintiff the cost for transporting her household goods and personal effects from Winston-Salem to Houston, Texas, and return to Winston-Salem, or the rental costs incurred in Houston, Texas, and the order entered below is modified accordingly.
On the defendant's appeal, she assigns as error the finding of fact that the plaintiff was a fit and suitable person to have custody of the minor children born of the marriage, and that it was to the best interest of the children that plaintiff have their custody.
When the plaintiff filed his motion for an absolute divorce, he alleged the execution of the separation agreement between the plaintiff and the defendant, under the terms of which the defendant had been given the custody of the minor children born of the marriage with visitation privileges to the plaintiff, and which further *78 provides for the support of the children by the plaintiff. Therefore, the plaintiff further alleged, the custody of the minor children born of the marriage was not at issue in the action. The question of custody of the children involved was first brought into the action for absolute divorce when the defendant filed answer to the complaint on 4 August 1965. The defendant admitted each and every allegation in the complaint except the allegation that the custody of the minor children born of the marriage was not at issue, and alleged she was a fit and proper person to have custody of said children and prayed for an order awarding her custody of the children. The motion in the cause filed by plaintiff on 5 August 1965, requesting the court to award him custody of the minor children, and defendant's answer constituted the basis for the custody hearing.
The evidence is voluminous and sharply conflicting as to the habits and conduct of the parties with respect to their fitness to have custody of the children born of this marriage. The recital of this evidence would serve no useful purpose.
The question of custody is one addressed to the trial court. When the court finds that both parties are fit and proper persons to have custody of the children involved, as it did here, and then finds that it is to the best interest of the children for the father to have custody of said children, such holding will be upheld when it is supported by competent evidence. Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684.
In the case of Finley v. Sapp, supra, the trial judge found as a fact that both the father and mother of the ten-year-old child were "fit and suitable" persons to have custody of the child, but that the "child's best interests, health and general welfare" would be better served by giving the mother custody of the child. Devin, C. J., in affirming the lower court, said:
"The statute G.S. § 50-13 specifically provides that the court `may commit their custody and tuition to the father or mother, as may be thought best'. And in Walker v. Walker, 224 N.C. 751, 32 S.E.2d 318, 320, Justice Winborne, speaking for the Court, used this language: `Applying this statute, the decisions of this Court hold that the question of granting the custody and tuition of the child to the father or mother is discretionary with the court (citing authorities.) The welfare of the child is the paramount consideration, or, as stated In re Lewis, 88 N.C. 31, "the polar star by which the discretion of the courts is to be guided."' (Citations omitted.)"
There is ample evidence to support the findings of the court below, and the judgment with respect to custody will be upheld. This assignment of error is overruled.
The defendant assigns as error the action of the court below in exercising jurisdiction with respect to custody and in refusing to dismiss the motion in the cause filed in this action on the ground that a prior action was pending in the Superior Court of Forsyth County between the parties in which custody was at issue.
The separation agreement, entered into by the parties after the complaint and answer were filed in the plaintiff's action for divorce from bed and board, settled all matters in controversy between the parties at that time. It was understood that the action would be dismissed, but through oversight it was not. No custody or other hearing was ever had in the above action. Furthermore, it was the defendant who first requested the court in the present action to rule upon the question of custody. Moreover, the defendant never raised any question about the pendency of a prior action until after the custody hearing *79 had been concluded and the judgment from which she now appeals had been entered. The question raised is a mere technicality, since both actions were pending in the Superior Court of Forsyth County and the proper action for disposition of the custody matter was in the action for absolute divorce, the action in which the plaintiff and the defendant requested the court to rule on the question of custody. If a prior action had been instituted in the superior court in another county, and the court had previously ruled on the question of the custody of the children involved herein, we would have had a different situation, Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857, but on the facts revealed on this record, this assignment of error is overruled.
The defendant further assigns as error the failure of the court below to include as a finding of fact the preferences of the minor children as to their custody. In Lee's North Carolina Family Law, 3rd Edition, Volume 3, Custody of Children, § 224, page 21, et seq., it is said:
"The welfare or best interest of the child, in the light of all the circumstances, is the paramount consideration which guides the court in awarding the custody of a minor child. It is `the polar star by which the discretion of the court is guided.' * * *
"When the child has reached the age of discretion the court may consider the preference or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view on the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be for the child's best interests, regardless of the child's personal preference. * * *"
In the case of James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759, Parker, J., speaking for the Court, said: "The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between the parents, but is not controlling. * * *"
This assignment of error is overruled.
In view of the conclusions heretofore reached, the remaining assignments of error are without sufficient merit to warrant a new trial on defendant's appeal, and they are overruled.
On plaintiff's appealmodified and affirmed.
On defendant's appealaffirmed.