Mullen v. Sawyer , 277 N.C. 623 ( 1971 )

178 S.E.2d 425 (1971) 277 N.C. 623

H. T. MULLEN, Jr., Administrator C. T. A. of the Estate of Walter W. Sawyer, Jr.
v.
Gwendolyn B. SAWYER.

No. 51.

Supreme Court of North Carolina.

January 21, 1971.

Small, Small & Watts, by Thomas S. Watts, Elizabeth City, for petitioner-appellant.

Forrest V. Dunstan, Elizabeth City, for defendant-appellee.

MOORE, Justice.

At common law the father's duty to support his children did not survive the father's death. Gray v. Gray, 273 N.C. 319, 160 S.E.2d 1. This rule obtained even though the children were minors. Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d 224. As was said in Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732:

"``The relationship of parent and child is a status, and not a property right.' 67 C.J.S. Parent and Child § 2, p. 628. At common law it is the duty of a father to support his minor children. Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d 224; Green v. Green, 210 N.C. 147, 185 S.E. 651; Blades v. Szatai, 151 Md. 644, 135 A. 841, 50 A.L.R. 232. * * * The common law obligation of a father to support his child is not ``a debt' in the legal sense, but an obligation imposed by law. Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414. It is not a property right of the child but is a personal duty of the father which is terminated by his death. Elliott v. Elliott, supra; Lee v. Coffield, 245 N.C. 570, 96 S.E.2d 726; Blades v. Szatai, supra. These common law principles have not been abrogated or modified by statute and are in full force and effect in this jurisdiction. G.S. § 4-1; Elliott v. Elliott, supra."

The support of a child by a parent may be the subject of a contract, and the father may by contract create an obligation to support his child which will survive his death and constitute a charge against his estate, in which case the ordinary rules of contract law are applicable. Layton v. Layton, supra; Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81; Stone v. Bayley, 75 Wash. 184, 134 P. 820; 6 Strong's N.C. Index 2d, Parent and Child § 7, p. 168.

A consent judgment is a contract between the parties entered upon the records of the court with the approval and sanction of a court of competent jurisdiction. It is construed as any other contract. Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826; 5 Strong's N.C. Index 2d, Judgments § 10.

"The heart of a contract is the intention of the parties, which is ascertained by the subject matter of the contract, the language used, the purpose sought, and the situation of the parties at the time." Pike v. Wachovia Bank & Trust Co., 274 N.C. 1, 161 S.E.2d 453. In the present case we must examine the contract created by the consent judgment to determine whether or not Dr. Sawyer intended to create a debt in a legal sense which would survive his death and become an obligation of his estate. The defendant contends that under the decision in Layton v. Layton, supra, the contract entered into by the parties did not create such an obligation.

In Layton the wife's action for alimony and child support was terminated by a consent judgment in which the husband agreed to pay $50 a month for the support of two children and to provide a dwelling house. In holding that this consent judgment did not manifest an intention that the obligation survive the husband's death, this Court said:

"* * * It is clear that the primary purpose of the consent order was to fix the amount of support. * * * There is no provision, express or clearly implied, that the payments were to be continued after defendant's death. The order creates no lien upon any of E. C. Layton's property. There is no special consideration running to him as was the case in Church v. Hancock, supra [261 N.C. 764, 136 S.E.2d 81]. The contract is silent as to the time of termination of support payments. * * * It is clearly the intention of the father to meet his common law obligation to his children, and nothing more, and it was the intent and purpose of plaintiff and defendant that this obligation be fixed and certain as to amount. There is nothing in the contract which imposes upon E. C. Layton any obligation or debt over and beyond that required and limited by the common law principles stated above."

In Layton the Court does set out certain provisions or conditions in the contract which can be considered in determining the intent. These are: (1) Does the language create a lien upon the father's property? (2) Is there a special consideration in favor of the father? (3) Is there a specific termination time for the payments? (4) Is there an obligation in excess of the common law duty to support? These elements in themselves may not be conclusive, but in the present case they may assist in determining the intent of Dr. Sawyer at the time he signed the consent judgment.

Applying the criteria of Layton, the consent judgment makes it clear that Dr. Sawyer intended the Camden County farm to be security for the support payments and that these payments were to terminate at age 18-a definite time. There was a "special consideration" for the obligations which Dr. Sawyer assumed in the consent judgment—his monthly payments were reduced, and an arrearage of $4,800 was cancelled for $1,600. The consent judgment obligated Dr. Sawyer to provide each child a four-year college education without limit as to time or amount. This clearly exceeded the requirements of the common law. Church v. Hancock, supra; Lee v. Coffield, 245 N.C. 570, 96 S.E.2d 726. Considering these and the other provisions of the consent judgment, we hold that Judge Mintz correctly decided that Dr. Sawyer intended his agreement to support Sarah and provide Sarah and Walter with a four-year college education should survive his death and become an obligation of his estate.

Defendant contends, however, that Sarah forfeited her right to support and to a college education by marrying. Sarah testified that she never enrolled at any college or university because she was "financially unable to attend." She further testified: "I want to go to college now because * * * I would like to better myself as a person and should anything happen to my husband, college would insure me a job to support myself and my son." It was stipulated by counsel that Sarah had never received any money for her college education. The consent judgment contained no provision that Sarah's support or education would be affected by her marriage.

In Church v. Hancock, supra, the husband and wife entered into a separation agreement. In consideration of her relinquishment of certain rents, he agreed to pay her a monthly sum for the support of herself and the children of the marriage. The agreement provided for a reduction if the wife remarried or in the event of the death of a child. Otherwise, the payments continued to a specific date. One of the children married. The Court held that the marriage of the child did not reduce the payments, stating:

"* * * The terms of the contract under consideration are plain and unambiguous. The parties provided for those contingencies which would, upon occurrence, reduce Charles H. Hancock's stipulated monthly payments. They were the plaintiff's remarriage and the death of a child or children. The separation agreement contained no provision for a reduction in the event of a child's marriage * * *."

While Church referred only to payments for support, the reasoning applies equally to the obligation to provide for a college education. In the present case, Dr. Sawyer agreed to assume the burden of a four-year college education for each of his children without any proviso as to marriage. We hold that Sarah's marriage did not relieve Dr. Sawyer's estate of the obligation to support her until she arrived at the age of 18 or of the obligation to provide her with a four-year college education.

Defendant further contends that Walter forfeited his right to a college education by refusing to attend the college of his father's choice, as provided for in the consent judgment. His father selected Old Dominion in Norfolk, Virginia as the college for Walter to attend, but added an additional requirement, not provided for in the consent judgment, that Walter reside in the home of Dr. Sawyer. Walter entered Old Dominion in the fall of 1962. He testified he was apprehensive about living in his father's house since he felt he and his sister had not been treated properly when they last visited his father and stepmother in 1958. However, he and his father decided "to give it a try, and if it didn't work out, other provisions would be made." From Walter's standpoint, it did not work out. He testified in substance that his living conditions with his father and stepmother were ones of harassment, humiliation, and general nagging. His stepmother constantly referred to the financial sacrifices they were making to send him to college. She nagged him about lack of social graces and manners as well as inadequate background and training which his mother had given him. On one occasion he had a severe toothache and on visiting the dentist found numerous cavities which required attention. He was refused further dental care because his stepmother said this condition was due to his or his mother's neglect. Every time he violated one of the rules of conduct which his stepmother had laid down for him, she took 25¢ out of his weekly allowance of $3, which was provided him for lunches and other incidentals. If he used the wrong stairway, stepped on the living room rug, forgot to take out the garbage, etc., he was fined a quarter. He was not allowed to go to the ice box between meals, and he lived in a bedroom which had been fixed in the attic. He was not allowed to use the main stairway, but had to use the maid's entrance and the back way. Because of these conditions, Walter testified that he was unable to do college work and withdrew from Old Dominion about Thanksgiving in 1962. He later enrolled at St. Mary's College (a junior college) and after two and one-half years graduated from there and entered Towson State College in Baltimore as a junior. In 1967 he graduated from Towson with an A. B. degree. He received no financial support of any kind from his father after leaving Old Dominion.

Judge Mintz found as facts:

"13. Said son had not visited in the home of his father and stepmother since 1957, prior to his enrollment in college in 1962. The lack of communication over the years between the son, Dr. Sawyer and Gwendolyn combined with the constant association during the period he attended Old Dominion College [and] resulted in a relationship between the individuals that was incompatible. Said son could not reasonably have been expected to procure a satisfactory college education while living in the strained environment produced by this situation. It was reasonably necessary for the son to extricate himself from this environment and to seek enrollment in a college where this environment did not exist. It was reasonable for the son to enroll in another college where the cost would be reasonable and comparable to the cost of the college education contemplated at the time of the consent judgment. The withdrawal of said son from Old Dominion College did not constitute an abandonment or waiver of his rights to a college education pursuant to the consent judgment.

"14. Except for certain visitation rights of Dr. Sawyer with his son, the custody of the son was awarded by the separation agreement and the consent judgment to the mother and neither the consent judgment nor any other instrument required the son to live with Dr. Sawyer in order to obtain a college education. Requiring the son to submit to this additional condition was not contemplated at the time of the consent judgment by any party to that proceeding. By this additional condition Dr. Sawyer unilaterally altered the terms and provisions of said consent judgment; thus forcing his son to seek a college education at another, comparable institution."

Upon waiver of jury trial, the court's findings of fact, if supported by competent evidence, have the force and effect of a jury verdict. MacKay v. McIntosh, 270 N.C. 69, 153 S.E.2d 800; Priddy v. Kernersville Lumber Co., 258 N.C. 653, 129 S.E.2d 256; Textile Insurance Co. v. Lambeth, 250 N. C. 1, 108 S.E.2d 36.

There was ample competent evidence to support Judge Mintz's findings that the requirement that Walter live in the Sawyer home while he was attending college, and the "strained environment" created therein by the attitude and conduct of Dr. Sawyer and his wife, forced Walter to seek his college education at another institution. Judge Mintz then properly concluded that Walter did not abandon or waive his right to a college education by leaving Old Dominion.

"It is a salutary rule of law that one who prevents the performance of a condition, or makes it impossible by his own act, will not be permitted to take advantage of the nonperformance." Harwood v. Shoe, 141 N.C. 161, 163, 53 S.E. 616. Accord: Commercial Nat. Bank of Charlotte v. Charlotte Supply Co., 226 N.C. 416, 38 S.E.2d 503; Morrison v. Walker, 179 N.C. 587, 103 S.E. 139; Whitlock v. Auburn Lumber Co., 145 N.C. 120, 58 S.E. 909; 2 Strong's N.C. Index 2d, Contracts § 20.

5 Williston on Contracts, 3d ed., § 667A, p. 233, states the rule:

"It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it. Although the early decisions are to the contrary, it seems evident that the same principle of justice which precludes a promisor from taking advantage of a condition, the performance of which he himself has prevented, precludes him also from setting up a condition the performance of which he has made more difficult."

See 17 Am.Jur.2d, Contracts § 427, p. 882; Restatement, Contracts § 295 (1932).

The indignities heaped upon Walter in the Sawyer household, and the utter disregard for his feelings, made it more difficult if not impossible for him to do satisfactory college work at Old Dominion. His leaving was justified and in no way affected his right to reasonable payment for a four-year college education from his father's estate.

For the reasons stated above, the decision of the Court of Appeals is reversed, and the case is remanded to that court with directions to enter a judgment affirming the judgment of the Superior Court.

Reversed and remanded.