Williford v. Williford ( 1971 )

179 S.E.2d 114 (1971) 10 N.C. App. 451

Edna Wolfe WILLIFORD
v.
R. E. WILLIFORD.

No. 7119SC82.

Court of Appeals of North Carolina.

February 24, 1971. Certiorari Denied April 6, 1971.

Miller, Beck & O'Briant by Adam W. Beck, Asheboro, for plaintiff appellee.

Bell, Ogburn & Redding by John N. Ogburn, Jr., Asheboro, for defendant appellant.

Certiorari Denied by Supreme Court April 6, 1971.

PARKER, Judge.

Defendant having admitted the contract and his failure to pay, plaintiff is entitled to summary judgment unless the facts alleged in the further answer constitute a valid defense. G.S. § 1A-1, Rule 56(c). We agree with the trial judge that they do not.

At the outset we observe that, on the record before us, the defendant's obligation to make the monthly support payments to plaintiff arises from the written separation agreement and not from the divorce decree. By copying verbatim in the divorce decree the paragraph in the agreement in which defendant agreed to make these payments, the court did not adopt the agreement of the parties as its own determination but merely approved or sanctioned the payments which defendant had agreed to make for his wife's support. "Such a judgment constitutes nothing more than a contract between the parties made with the approval of the court," Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, and may not be enforced by contempt proceedings. See opinion by Graham, Judge, in Williford v. Williford, N.C.App., 179 S.E. 2d 113, filed this date. Since the agreement rather than the judgment controls, we must look to the entire agreement, and not merely to those portions thereof which were copied into the divorce judgment, in order to determine the nature and extent of interdependency of the reciprocal rights and obligations of the parties.

The chief merit and object of written separation agreements is to bring some stability and continuity into what is at best a troublesome relationship. Of necessity such agreements must deal with a large number of disparate subjects, particularly when children are involved. The principal purpose of such agreements might frequently be frustrated if a violation of one provision by one party should be held to furnish legal excuse for the other to refuse performance of some unrelated covenant. Therefore, the authorities have generally held that it is not every violation of the terms of a separation agreement by one spouse that justifies the other in refusing performance. Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148.

"The question whether the wife's breach of some of the provisions of the separation agreement will constitute a defense to her action upon the agreement to enforce a provision for alimony or support is generally made to turn upon the question whether the two provisions are dependent or independent, and the tendency of the courts seems to be to hold that provisions for alimony or support are independent of the other provisions, so that the breach is not a defense to the action." 24 Am.Jur.2d, Divorce and Separation, § 923, p. 1050.

In Smith v. Smith, supra, plaintiff, the former wife, sued her former husband to recover judgment for the amount of unpaid monthly installments which he had agreed to pay her under the terms of a written separation agreement. The agreement contained a provision that each party would refrain from molesting the other in any manner, and defendant sought to excuse his failure to pay in accordance with the terms of the agreement on the ground that plaintiff had violated her covenant against molestation of defendant. Our Supreme Court held that this was no defense. Winborne, J. (later C.J.), speaking for the Court, after reviewing the authorities, said (at p. 197, 34 S.E.2d at p. 153):

"These authorities are to the effect (1) that it is not every violation of the terms of a separation agreement by one spouse that will exonerate the other from performance; (2) that in order that a breach by one spouse of his or her covenants may relieve the other from liability from the latter's covenants, the respective covenants must be interdependent rather than independent; and (3) that the breach must be of a substantial nature, must not be caused by the fault of the complaining party, and must have been committed in bad faith."

The Supreme Court held that the plaintiff in that case was entitled to have judgment entered in her favor on the pleadings.

The written separation agreement signed by the parties in the case now before us dealt with a large number of distinct matters in fourteen numbered paragraphs. Included among the matters dealt with was a division between the parties and provision for separate ownership of certain real and personal property previously owned by them jointly. Each agreed that the other might acquire and own real and personal property free of any estate or interest of the other. The wife expressly accepted the provisions made in the agreement for her benefit "in full satisfaction for her support and maintenance," and both parties agreed that the written separation agreement was "a complete settlement of the respective property rights of the parties hereto in the property, real and personal," which was referred to in the agreement or which either might thereafter acquire. Under these circumstances it is our opinion, and we so hold, that the provisions in the agreement by which the husband agreed to pay his wife $1,200.00 per month for her support and maintenance were independent of the provisions contained in the separate paragraph of the agreement dealing with custody of the children and the husband's visitation rights. Therefore, even if the defendant in this case should offer evidence in support of the allegations in his further answer, such a showing would furnish no defense to the plaintiff's action.

If plaintiff is in fact interfering with defendant's visitation rights with the children, defendant is not without remedy. Minor children remain always in the protective custody of the court, Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487, to which either parent has ready access in event custody and visitation privileges come into controversy. Resort to that remedy would result in far less hardship on the children than would normally be the case if the father should seek to enforce his visitation privileges by withholding support from the mother.

The judgment appealed from is

Affirmed.

MALLARD, C. J., and GRAHAM, J., concur.