Motley v. Motley , 255 N.C. 190 ( 1961 )

120 S.E.2d 422 (1961) 255 N.C. 190

Laura R. MOTLEY
v.
W. E. MOTLEY.

No. 593.

Supreme Court of North Carolina.

June 16, 1961.

Herring, Walton & Parker, Southport, for plaintiff.

S. B. Frink, Southport, for defendant.

DENNY, Justice.

The defendant does not except to or assign as error the order of the court below overruling the demurrer to the plaintiff's first cause of action, or to the allowance of plaintiff's motion to strike the plea in bar set out in the defendant's further answer and defense. He appeals only from the order making the allowances hereinabove set out.

In the hearing below the defendant introduced in evidence the antenuptial contract dated 24 September 1956, and relies thereon as a release and a bar to the right of plaintiff to have the court award her attorneys' fees and alimony pendente lite, citing G.S. § 52-13. This statute reads as follows: "Contracts between husband and wife not forbidden by § 52-12 and not inconsistent with public policy are valid, and any persons of full age about to be married, and, subject to § 52-12, any married person, may release and quitclaim dower, tenancy by the curtesy, and all other rights which they might respectively acquire or may have acquired by marriage in the property of each other; and such releases may be pleaded in bar of any action or proceeding for the recovery of the rights and estates so released."

It will be noted that the foregoing statute relates to the release of an interest in property, but has no bearing whatever on the right of a wife to support.

In the case of Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414, 415, Stacy, C. J., speaking for the Court, said:

"While it is true that in ordinary transactions married women are permitted to deal with their earnings and property practically as they please or as free traders, Price v. Charlotte Electric R. Co., 160 N.C. 450, 76 S.E. 502, still there is nothing in the statutes to indicate a purpose on the part of the General Assembly to reduce the institution of marriage, or the obligations of family life, to a commercial basis. G.S. § 52-12; § 52-13. It is the public policy of the State that a husband shall provide support for himself and his family. 41 C.J.S. Husband and Wife, § 14, p. 404; 26 Am.Jur., 934. This duty he may not shirk, contract away, or transfer to another. 41 C.J.S., Husband and Wife, § 15, p. 407. It is not a ``debt' in the legal sense of the word, but an obligation imposed by law, and penal sanctions are provided for its wilful neglect or abandonment. * * *

"There are three parties to a marriage contract—the husband, the wife and the State. For this reason marriage is denominated a status, and certain incidents are attached thereto by law which may not be abrogated without the consent of the third party, the State. The moment the marriage relation comes into existence, certain rights and duties spring into being. One of these is the obligation of the husband to support his wife. French v. McAnarney, 290 Mass. 544, 195 N.E. 714, 98 A.L.R. 530. ``In the public interest the state has ever deemed it essential that certain obligations should attach to a marriage contract, amongst which is the duty of a husband to support his wife. Defendant was therefore shorn of power to enter into any arrangement or contract which would relieve him of such obligation.' * * *" McLean v. McLean, 237 N.C. 122, 74 S.E.2d 320.

The antenuptial agreement relied upon by the defendant herein is against public policy and is null and void in so far as it undertakes to relieve the defendant from the duty of supporting the plaintiff. The rights of the parties herein to the relief sought must be determined without regard to the contents of the antenuptial agreement. This agreement does not bar the plaintiff from making an application for temporary alimony and attorneys' fees in this action. Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502; 26 Am.Jur., Husband and Wife, sections 275 and 326, at pages 881 and 923, et seq.

The evidence adduced in the hearing below with respect to the misconduct of the defendant towards the plaintiff is much stronger than the allegations of the complaint with respect thereto. Even so, in our opinion, the findings of fact by the court below are sufficient to support the order from which the appeal was taken, and we so hold. Barwick v. Barwick, 228 N.C. 109, 44 S.E.2d 597.

The cases of McManus v. McManus, 191 N.C. 740, 133 S.E. 9, and Ipock v. Ipock, 233 N.C. 387, 64 S.E.2d 283, relied upon by the defendant, are not controlling on the facts in the instant case.

The order of the court below is

Affirmed.