Jeanenne P. OWENS
v.
Godfrey Leggett LITTLE.
No. 713DC709.
Court of Appeals of North Carolina.
February 2, 1972.*184 Gaylord & Singleton by A. Louis Singleton, Greenville, for plaintiff appellant.
Wallace, Langley, Barwick & Llewellyn, by P. C. Barwick, Jr., Kinston, for defendant appellee.
HEDRICK, Judge.
In the record we find the following statement:
"The plaintiff does not now appeal any finding of fact of the judge concerning any other amounts owed so basically the issue is whether or not the Deed of Separation has been modified as provided in paragraph 6 of the judgment. . . ."
Therefore, we do not disturb that part of the judgment decreeing that the plaintiff recover of the defendant $90.26 and the costs of the action.
Plaintiff contends that the court erred in finding and concluding that plaintiff's claim for reimbursement from the defendant for $1,321.78, paid in behalf of Richard Little to the Raleigh School of Data Processing, was barred by the deed of separation as modified by the order of Judge Wheeler dated 5 September 1969.
The plaintiff argues that Judge Wheeler was without authority, in the absence of the consent of the parties, to modify the contractual obligation of the defendant to provide educational expenses for his son, Richard Little.
The defendant contends that the plaintiff sought and obtained the judgment dated 5 September 1969 for the specific purpose of having the funds for the "health, education, and maintenance" of all the children increased over the amounts provided in the deed of separation and that, having accepted the benefits of the judgment, she now ought to be estopped to deny that the father's contractual obligation was modified by the judgment entered 5 September 1969.
In Rabon v. Ledbetter, 9 N.C.App. 376, 176 S.E.2d 372 (1970), Judge Parker, writing for the Court, said:
"While the provisions of a valid separation agreement relating to marital and property rights of the parties cannot be ignored or set aside by the court without the consent of the parties, such 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, 146 S.E.2d 73; Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235. No agreement between husband and wife will serve to deprive the courts of their inherent authority to protect the interests and provide for the welfare of infants. Husband and wife `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.' Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487."
We do not think that the wife abrogated the agreement in the deed of separation providing that the father pay educational expenses for Richard Little by bringing the action to enforce the father's legal obligation to provide support and education for his children. The court clearly had authority to increase the payments for the support of three children above that provided in the separation agreement for the support of four children. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962). The judgment in no way modified the agreement between the parents relating to the educational expenses of Richard Little. The judgment provided no increased benefits for Richard Little whatsoever. We do not think that it can be said that the wife, by accepting the benefits of the judgment, is now estopped to deny that the judgment modified the terms of the deed *185 of separation pertaining to the father's contractual obligation to provide educational expenses for his son, Richard Little.
Without deciding the legal effect of paragraph four of Judge Wheeler's order, we think it suffices to say that the trial court erred in finding and concluding that plaintiff's claim for $1,321.78 was "barred and estopped" by the deed of separation as modified by paragraph four of Judge Wheeler's order dated 5 September 1969.
The provisions of a valid deed of separation between parents wherein the father agrees to provide funds for the support and education of his children over and above his common-law obligation to do so are binding and must be construed as any other contractual obligation. Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425 (1971); Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965); Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964); Goodyear v. Goodyear, supra.
The rule with respect to the construction of contracts of this nature was quoted by Rodman, J., in Goodyear v. Goodyear, supra, as follows:
"`The general rule is that, where the entire contract is in writing and the intention of the parties is to be gathered from it, the effect of the instrument is a question of law, but, if the terms of the agreement are equivocal or susceptible of explanation by extrinsic evidence, the jury under proper instructions may determine the meaning of the language employed.'"
In the instant case there has been no construction of the contract between the parties relating to plaintiff's claim for $1,321.78.
For the trial court's error in decreeing that plaintiff's claim for $1,321.78 was barred and estopped by the deed of separation, as modified by the judgment dated 5 September 1969, the case is remanded to the District Court of Pitt County for a construction of the contract between the parties relating to the educational expenses of Richard Little, and for the court to make findings of fact and proceed as the law requires.
Error and remanded.
MALLARD, C. J., and GRAHAM, J., concur.