Charlotte W. E. WINBORNE
v.
Stanley WINBORNE, III.
No. 789DC848.
Court of Appeals of North Carolina.
June 19, 1979.*642 Blackwell M. Brogden and Blackwell M. Brogden, Jr., Durham, for plaintiff-appellant.
Vaughan S. Winborne, Raleigh, for defendant-appellee.
HEDRICK, Judge.
The one question presented by this appeal is whether the trial court erred in allowing defendant's motion to dismiss plaintiff's action for failure to state a claim upon which relief could be granted.
In North Carolina a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. A complaint may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim or in the disclosure of some fact that will necessarily defeat the claim. A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts that could be proved in support of the claim. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Federal Deposit Insurance Corp. v. Loft Apartments Ltd. Part., 39 N.C.App. 473, 250 S.E.2d 693 (1979); Gallimore v. Sink, 27 N.C.App. 65, 218 S.E.2d 181 (1975).
Plaintiff contends that she has sufficiently stated various claims for relief. In support of her contention, plaintiff argues that defendant had a duty to disclose the *643 existence of his adulterous relationship because of the confidential relationship that exists between a husband and wife, see Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708 (1965), that his failure to disclose such fact amounted to a misrepresentation, and therefore, the separation agreement is invalid under the rule in Eubanks v. Eubanks, 273 N.C. 189, 196, 159 S.E.2d 562, 567 (1968), because she was induced to enter into it without "full knowledge of all the circumstances, conditions, and rights of the contracting parties."
Plaintiff's claim to set aside the separation agreement for fraud must fail for the following reason: A crucial element of plaintiff's claim is a duty on the part of the defendant to disclose the existence of his alleged adulterous relationship. Plaintiff has negated this element by alleging in her complaint that she was represented by counsel during the negotiations concerning the separation agreement. When the wife employs an attorney, and, through counsel, deals with her husband as an adversary, the confidential relationship between husband and wife no longer exists. Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714 (1965). See also Murphy v. Murphy, 34 N.C.App. 677, 239 S.E.2d 597 (1977), rev'd on other grounds, 295 N.C. 390, 245 S.E.2d 693 (1978). Thus the facts alleged in plaintiff's complaint affirmatively show that the defendant was under no duty to disclose to the plaintiff the existence of the purported adulterous relationship. Plaintiff has pleaded an insurmountable bar to her claim to have the separation agreement set aside, and the first count of her complaint was properly dismissed.
Plaintiff concedes in her brief that her claims for alimony pendente lite and permanent alimony are dependent upon her claim to have the separation agreement set aside. See Eubanks v. Eubanks, supra. We agree. Since the plaintiff has pleaded an insurmountable bar to her claim for vacation of the separation agreement, her claims for alimony pendente lite, permanent alimony, and counsel fees under G.S. § 50-16.4 must also fail. Thus, the portions of her second cause of action alleging those claims were also properly dismissed.
Finally, we consider plaintiff's remaining claims for custody and support of the parties' minor children. Under the separation agreement the plaintiff was awarded the custody and control of the minor children and defendant agreed to pay $300.00 per month for the support of the children. Plaintiff alleged in her complaint that "since the separation, defendant has been paying to the plaintiff the sum of $300.00 per month for the support and maintenance of the minor children."
The right to institute an action for custody of minor children is granted by G.S. § 50-13.1, and the right to institute an action for support for them is granted by G.S. § 50-13.4. When a case is properly before it, the court has the "duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court." Spence v. Durham, 283 N.C. 671, 684-85, 198 S.E.2d 537, 546 (1973). Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. However, a valid separation agreement "cannot be ignored or set aside by the court without the consent of the parties," Hinkle v. Hinkle, 266 N.C. 189, 195, 146 S.E.2d 73, 77 (1966), and "there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable." Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963). See also Soper v. Soper, 29 N.C.App. 95, 223 S.E.2d 560 (1976); Childers v. Childers, 19 N.C.App. 220, 198 S.E.2d 485 (1973).
In the present case, we cannot say that the plaintiff has pleaded an insurmountable bar to the custody and child support claims alleged in the complaint, or that she will be unable to prove at trial facts in support of those claims. We hold, *644 therefore, that the trial court erred in dismissing the claim for custody and support for the children and counsel fees for plaintiff's attorney in prosecuting this claim.
In the Order dismissing plaintiff's action, the trial judge stated that the plaintiff's motion for change of venue and consolidation was "moot." Since the plaintiff's action with regard to custody and support should not have been dismissed, on remand there must be a ruling by the trial judge on this motion.
The result is: That the portion of the judgment dismissing plaintiff's action to have the separation agreement set aside, for alimony pendente lite and permanent alimony, and for counsel fees for those claims is affirmed; that portion of the judgment dismissing plaintiff's claims for custody of and support for the minor children, and for counsel fees as authorized under G.S. § 50-13.6 is reversed; and the cause is remanded to the District Court of Granville County for further proceedings, including a ruling on plaintiff's motion for change of venue and consolidation.
Affirmed in part; reversed in part; and remanded.
MORRIS, C. J., and WEBB, J., concur.