Swink v. Swink , 6 N.C. App. 161 ( 1969 )

169 S.E.2d 539 (1969) 6 N.C. App. 161

Julia Harris SWINK
v.
Caleb White SWINK and Cabarrus Bank and Trust Company, Garnishee.

No. 6919SC442.

Court of Appeals of North Carolina.

September 17, 1969.

Kluttz & Hamlin, by Lewis P. Hamlin, Jr., Salisbury, for plaintiff appellee.

Alexander & Brown by B. S. Brown, Jr., Kannapolis and E. T. Bost, Jr., Concord, for Cabarrus Bank and Trust Co., garnishee, defendant appellant.

VAUGHN, Judge.

The appellant contends that the administration of this trust should be governed by the laws of the District of Columbia. The appellee contends that the law of North Carolina should apply. We do not deem it necessary to pass upon this question. We are convinced that under the law of either jurisdiction, the income from the trust under consideration is subject to execution to satisfy the judgment of the wife against the defendant-beneficiary for alimony, child support and counsel fees. The result is reached even if we were to assume, as the appellant contends, that this is a valid "spendthrift" trust to be administered under District of Columbia law. Without question, it is clear that under the law there, the interests of the father may be invaded for the support of minor children. Seidenberg v. Seidenberg, 96 U.S.App.D.C. 245, 225 F.2d 545 (1955). Although that case dealt with support of minor children, the Court did not distinguish between a wife and child. The opinion in Seidenberg is easily susceptible to the determination that a spendthrift trust can be reached for the purpose of meeting claims for alimony as well as child support. The cases cited and relied upon by the court involved support for wives. Judge Holtzoff quoted from Safe Deposit and Trust Company of Baltimore v. Robertson, 192 Md. 653, 65 A.2d 292, which held that spendthrift trusts could be attached for alimony. He also cited the Restatement of the Law of Torts, § 157, wherein it is stated that the interest of the beneficiary can be reached in satisfaction of an enforceable claim, "(a) by the wife or child of the beneficiary for support, or by the wife for alimony * * *." It also is to be observed that although the judge in the Seidenberg case specifically refused to deal with the validity of spendthrift trusts, he referred to them as of "questionable morality" and being "an undemocratic doctrine."

There is a split of authorities in the states that recognize spendthrift trusts but the preponderance of them are in favor of attachment for maintenance or alimony.

Courts and legislatures have exempted certain classes from the restrictive provisions of spendthrift trusts and decided that the interest of the beneficiary may be reached "notwithstanding an express direction to the contrary" because of the strong equity behind these claims and because of the repugnancy to public policy. Bogert, Trust and Trustees, Second Edition, § 224. It is clear to us that under District of Columbia law the income from this trust is subject to attachment for child support and alimony.

If administration of the trust is to be governed by the laws of North Carolina, the same result is reached. The only spendthrift trust recognized in North Carolina is by G.S. § 41-9, the test of which clearly is not met here. North Carolina has valiantly withstood efforts in its courts to have valid spendthrift trusts born out of case law. Traditional notions of public policy and fair play have remained predominant. The view of the North Carolina courts is that whatever interests a debtor has in property of any sort may be reached by his creditors, in law or equity, according to the nature of the property. Mebane v. Mebane, 39 N.C. 131.

Restrictive provisions in a trust should not enable a father to shirk his legal obligations. This is especially true where the father has abandoned his wife and child and departed from the jurisdiction, thereby hindering the court in the use of contempt proceedings to enforce its decrees.

Since it is clear that the interest of the defendant-beneficiary can be reached to provide child support and alimony, the only issue left for this court is the reasonableness of the appropriation of the entire net income from the trust.

Judge Crissman's findings of fact as to the reasonable needs of the plaintiff and the child of the parties are supported by the evidence. The trial judge also found as a fact that the defendant-husband was thirty-five years of age, able-bodied and has two years of college. He concluded that a man of his age, physical condition and educational attainment is capable of earning $200.00 per week. The judge properly considered the earning capacity of the husband along with his income from this trust.

The amount allowed by the court for alimony and support of children of the marriage will be disturbed only where there is a gross abuse of discretion. Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649. Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399.

The judgment of the superior court entered herein is

Affirmed.

BROCK and BRITT, JJ., concur.