McKaughn v. McKaughn, 225 S.E.2d 616, 29 N.C.App. 702 (N.C. App., 1976)
225 S.E.2d 616
29 N.C.App. 702
Robert L. McKAUGHN, Jr.
Margery S. McKAUGHN.
Court of Appeals of North Carolina.
June 16, 1976.
Gaither & Gorham by James M. Gaither, Jr., Hickory, for plaintiff appellee.
Sigmon, Clark & Mackie by William R. Sigmon, Hickory, for defendant appellant.
Plaintiff seeks relief from the provisions of the separation agreement requiring (1) child support payments of $1,000 per month, and (2) life insurance policies in the face amount of $200,000 with his children as beneficiaries and $50,000 with his wife as beneficiary. In doing so, plaintiff does not seek a modification of the separation agreement. Rather, he takes the position that a substantial decrease in income and net worth since the execution of the agreement, makes performance impossible, and he seeks to have the court determine, in the light of his present financial circumstances, what he should provide for child support.
It is settled that any separation agreement dealing with the custody and the support of the children of the parties cannot deprive the court of its inherent as well as statutory authority to protect the interests of and provide for the welfare of minors. 2 Lee, N.C.Family Law, § 190 (1963).
A separation agreement is modified by increasing child support payments where the party with custody establishes that the separation agreement provisions do not adequately protect the interests of and provide for the welfare of the children. But no principal of public policy intervenes to relieve a party from the obligations of a separation agreement requiring support payments in excess of or other payments in addition to that required by law. See Church v. Hancick, 261 N.C. 764, 136 S.E.2d 81 (1964); Bailey v. Bailey, 26 N.C.App. 444, 216 S.E.2d 394 (1975).
[29 N.C.App. 705] A separation agreement is a contract between the parties and the court is without power to modify it except (1) to provide for adequate support for minor children, and (2) with the mutual consent of the parties thereto where rights of third parties have not intervened. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955); 42 C.J.S. Husband and Wife § 599, p. 183.
‘Novertheless, where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions.’ Rabon v. Ledbetter, 9 N.C.App. 376, 379, 176 S.E.2d 372, 375 (1970).
In the case before us the trial court found as a fact the decrease in plaintiff’s income from $50,000 to about $26,000 per year, decrease in his net worth from $1,000,000 to $61,000, living expenses of the plaintiff in the sum of $27,312.00 per year, needs of the children based on expenditures for them by defendant in the sum of $18,925.32 (including $3,000 for a beach cottage for one month), and defendant’s independent estate in excess of $2,000,000 and annual income of about $25,000. These and other findings of fact, admittedly supported by the evidence, rebut the presumption that the provisions mutually agreed upon are now just and reasonable support the conclusions that plaintiff was unable to comply with the child support provision of the separation agreement, and otherwise support the other conclusions and the order of the court.
The defendant-wife has a substantial independent estate and income. The mutual duty of both the father and mother to provide support for the children is required by the following provisions of G.S. 50–13.4:
‘(b) In the absence of pleading and proof that circumstances of the case otherwise warrant, the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or [29 N.C.App. 706] the inability of one or more of them to provide support, and the needs and estate of the child. Upon proof of such circumstances the judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child, as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support.
(c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case.’
The trial court enforced the child support provisions of the separation agreement by awarding to the defendant-wife judgment for the arrearage due under the agreement. However, it approved the maintenance of a life insurance policy in the face amount of $100,000 by plaintiff with the children as beneficiaries and denied defendant’s prayer for specific performance of the separation agreement provisions that he maintain life policies of $200,000 with the children as beneficiaries and $50,000 with defendant as beneficiary. We find that specific performance is not an appropriate remedy since defendant has failed to establish that she has no adequate remedy at law. And defendant sought no other remedy. The judgment in this case does not change plaintiff’s Contractual obligations under the separation agreement. The question before the court was what amount it would require in the exercise of its inherent and statutory authority to provide for the welfare of minors. We find no abuse of discretion by the court in ordering child support payments of $500 per month and the maintenance of a life insurance policy in the face amount of $100,000 with his children as beneficiaries.
The order of the trial court is
VAUGHN and MARTIN, JJ., concur.