Van Every v. Van Every , 265 N.C. 506 ( 1965 )

144 S.E.2d 603 (1965) 265 N.C. 506

Carolyn J. VAN EVERY
v.
Philip L. VAN EVERY.

No. 274.

Supreme Court of North Carolina.

November 3, 1965.

Herbert, James & Williams, Charlotte, and Jordan, Wright, Henson & Nichols, Greensboro, for plaintiff appellant.

Warren C. Stack, Kennedy, Covington, Lobdell & Hickman, by Frank H. Kennedy, Charlotte, for defendant appellee.

HIGGINS, Justice.

The plaintiff has appealed from an adverse judgment on the pleadings. The motion for such judgment is in the nature of a demurrer, allowable against the plaintiff only when the complaint as modified by the reply fails to allege facts sufficient to state a cause of action or admits facts which constitute a complete legal bar thereto. When all facts necessary to establish the plea in bar are either alleged or admitted in the plaintiff's pleadings, it becomes the duty of the court to pass on the plea as a matter of law. McFarland v. News & Observer Publishing Co., 260 N.C. 397, 132 S.E.2d 752; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384; Adams v. Cleve, 218 N.C. 302, 10 S.E.2d 911; Mitchell v. Strickland, 207 N.C. 141, 176 S.E. 468.

Conceding the plaintiff in her complaint states a cause of action for alimony under G.S. § 50-16, nevertheless, by her reply, she admits she executed a separation agreement and property settlement in accordance with the statutory formality required by G.S. § 52-12. At the time she executed the agreement and during the negotiations leading up to its preparation, she was represented by Messrs. Carswell & Justice, Attorneys of Charlotte, who participated for weeks in the negotiations which culminated in the settlement. She admits she received the home and all furnishings in Charlotte; a Cadillac automobile and a station wagon; and in lieu of periodic payments of alimony she received, at her own insistence and request, a lump sum payment of $420,000.00 in cash. The record discloses she received (and still receives) $1,500.00 monthly from a trust fund set up for her by the defendant and his mother.

On the argument the plaintiff's present counsel do not deny that the plaintiff's attorneys in the settlement proceeding were highly successful members of the Bar, possessed a high degree of legal learning and business experience. The eminence, experience, and character of counsel who represent the plaintiff in procuring a property settlement bear directly on her subsequent attempt to set it aside as fraudulent. "The presence of able counsel for the wife at the conference resulting in a separation agreement, and at the time she executes and acknowledges a deed of separation, ``negatives the inference or contention that she was incompetent to understand the arrangement, and was ignorant of its terms and did not know what she was doing,' (citing authorities). ``The courts will subject the wife's claim of fraud, duress, or undue influence to a far more searching scrutiny where she was represented by counsel in the making of the agreement and throughout the negotiations leading up to its execution.'" Joyner v. Joyner, 264 N.C. 27, 140 S.E.2d 714.

The plaintiff's pleadings are devoid of any factual allegations which raise an issue of fraud in procuring the separation agreement. The allegation, "(T)he plaintiff was advised (by whom is not disclosed) that the paper did not constitute a permanent settlement because the defendant would return, resume marriage relations, and the money received would be tantamount to a gift," is an insufficient allegation on which to impeach the Clerk's certificate required by G.S. § 52-12. The above allegation reflects more on the plaintiff's good faith than upon the defendant's lack of it. Nor are we impressed with the allegation that the provisions made for the wife are so grossly inadequate as to amount to a total failure of consideration for the contract. According to the plaintiff's allegation, the defendant's salary at the time of their marriage was $30.00 per week. Thirty years later a trust fund of $1,500.00 per month, a furnished home, two automobiles, and $420,000.00 in cash constitute "a total failure of consideration."

In the examination of the pleadings to determine whether a plea in bar is established thereby, we may treat the exhibit to the answer (the property settlement and separation agreement) as a part of the pleadings. The plaintiff's reply admits its execution. Sale v. Johnson, Com'r., 258 N.C. 749, 129 S.E.2d 465. A separation agreement in which fair and reasonable provision is made for the wife will be upheld when executed by her in the manner provided by G.S. § 52-12. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235; Bolin v. Bolin, 246 N.C. 666, 99 S.E.2d 920; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327. A valid separation agreement cannot be set aside or ignored without the consent of both parties. The intent of the parties as expressed in such an agreement is controlling. Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413; Lawson v. Bennett, 240 N.C. 52, 81 S.E.2d 162. The statute (G.S. § 52-12) provides that the certificate of the probate officer shall be conclusive. However, the contract may be set aside if induced by fraud. The plaintiff, however, must allege facts which, if found to be true, permit the legitimate inference that the defendant induced the plaintiff by fraudulent misrepresentations to enter into the contract which but for the misrepresentations she would not have done. If the pleading alleges conclusions rather than facts, it is insufficient to raise an issue of actual fraud. When tested by the applicable rules of construction, the plaintiff's allegations are insufficient to overcome the force and effect of her separation agreement. These deficiencies appear upon the face of the pleadings. Judge Riddle properly sustained the plea in bar, denied relief, and dismissed the action. His judgment is

Affirmed.