Sethness v. Sethness, 303 S.E.2d 424, 62 N.C.App. 676 (1983)
Charles Olin SETHNESS III
Ann Worcester SETHNESS.
Court of Appeals of North Carolina.
June 21, 1983.
Douglas, Ravenel, Hardy, Crihfield & Bullock by G.S. Crihfield and James W. Lung, Greensboro, for plaintiff-appellant.
Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave by Roger B. Bernholz, Chapel Hill, for defendant-appellee.
Plaintiff’s first contention on appeal is that the trial court erred in dismissing plaintiff’s Complaint for failure to state a claim upon which relief could be granted.
Plaintiff argues that the allegations in his Complaint establish his right to the relief prayed for: that the separation agreement be declared void.
In ruling on a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, the test to be applied by the court is whether the complaint alleges a set of facts which would entitle the plaintiff to some relief. Carolina Builders Corp. v. AAA Drywall, Inc., 43 N.C.App. 444, 259 S.E.2d 364 (1979); Yates v. City of Raleigh, 46 N.C.App. 221, 264 S.E.2d 798 (1980). For purposes of testing the sufficiency of a complaint to withstand a motion to dismiss under 12(b)(6), the allegations contained therein are liberally construed and treated as true. Shoffner Industries, Inc. v. W.B. Lloyd Construction Co., 42 N.C.App. 259, 257 S.E.2d 50, disc. rev. denied, 298 N.C. 296, 259 S.E.2d 301 (1979). However, ” ‘conclusions of law or unwarranted deductions of fact are not admitted.’ ” Sutton v. Duke, 277 N.C. 94 at 98, 176 S.E.2d 161 at 165 (1970), quoting 2A Moore’s Federal Practice [62 N.C.App. 680] § 12.08 (2d ed. 1968). A complaint is sufficient to withstand a motion to dismiss when no insurmountable bar to plaintiff’s claim appears on the face of the complaint. Shoffner Industries, Inc. v. W.B. Lloyd Construction Co., supra; United Leasing Corp. v. Miller, 45 N.C.App. 400, 263 S.E.2d 313, disc. rev. denied, 300 N.C. 374, 267 S.E.2d 685 (1980). A complaint should not be dismissed unless it appears to a certainty that no state of facts that could be proved in support of plaintiff’s claim would entitle him to relief. Yates v. City of Raleigh, supra at 225, 264 S.E.2d at 800. See generally Sutton v. Duke, supra, 2A Moore’s Federal Practice § 12.08 (1983).
In support of his contention, plaintiff cites us to G.S. § 52-10.1 for the proposition that separation agreements are “valid only so long as ‘not inconsistent with public policy.’ ” Plaintiff also cites several cases where separation agreements were found to be void as against public policy and thus unenforceable. Pierce v. Cobb, 161 N.C. 300, 77 S.E. 350 (1913); Howland v. Stitzer, 236 N.C. 230, 72 S.E.2d 583 (1952); Foy v. Foy, 57 N.C.App. 128, 290 S.E.2d 748 (1982). Our reading of these cases shows the agreements involved to be void by their own terms at the time of their execution. The clear implication of these cases and the statute cited, as defendant points out, is that such agreements may not by their own terms promote objectives (i.e.: divorce, termination of parental rights) which are offensive to public policy. While these authorities are pertinent here, they are not controlling.
Murphy v. Murphy, 295 N.C. 390, 245 S.E.2d 693 (1978), is cited by plaintiff in support of his contention that “illicit intercourse” is grounds for invalidating a separation agreement. Murphy, however, involved the resumption or continuation of sexual relations between a husband and wife after they had executed a separation agreement. The court in Murphy found that sexual relations between the parties to a separation agreement, even if infrequent, were irreconcilably inconsistent with the intent of the agreement and the policy of the law sanctioning such agreements. Id. The fact that the individuals involved in the sexual relations were both parties to the separation agreement is essential to the holding in Murphy. Here, the sexual relations which plaintiff contends invalidate the separation agreement involve defendant-wife and another man who has never been defendant’s husband and is [62 N.C.App. 681] not a party to the separation agreement. The rationale of Murphy does not apply and that case does not control the result here.
More on point is the case of Riddle v. Riddle, 32 N.C.App. 83, 230 S.E.2d 809 (1977), where this Court found that cohabitation by one party to a separation agreement does not necessarily invalidate the agreement or relieve a party of his support obligations thereunder. Riddle holds, in accordance with general principles of contract law, that a separation agreement must be enforced according to its own terms. The applicable provision of this separation agreement, quoted at the outset, provides that plaintiff is to pay defendant certain
sums of money. This obligation is to continue until the happening of certain events stated in the agreement (i.e.: emancipation of the child, remarriage of defendant). The agreement also confirms the right of the parties to “live separate and apart” and provides that “neither party shall interfere with the rights, privileges, doings or actions of the other.” Under the agreement, cohabitation by defendant with another man does not constitute a breach of the agreement or grounds for termination of plaintiff’s support obligation.
We do not condone illicit cohabitation or illicit intercourse and we note that such acts violate the laws of this state. We cannot say, however, that such acts, even if substantiated, would be cause for voiding the agreement with respect to the executory provisions regarding alimony. Therefore, plaintiff has pleaded an insurmountable bar to his claim and the trial court correctly dismissed the Complaint. Because a separation agreement does not specifically prohibit “illicit intercourse” and cohabitation and may, by implication, even condone such acts, it does not therefore follow that the agreement promotes them. Whether the silence of a separation agreement on such issues renders it void as against public policy is a matter for legislative, not judicial, determination. See Stallings v. Stallings, 36 N.C.App. 643, 244 S.E.2d 494, disc. rev. denied, 295 N.C. 648, 248 S.E.2d 249 (1978).
Plaintiff next excepts to and assigns as error the trial court’s granting of defendant’s Motion to Compel Arbitration. Plaintiff contends that there is a material issue of fact as to whether there exists an agreement to be the subject to arbitration. In his brief, plaintiff argues that the agreement, even if valid under New York law, cannot be given effect in North Carolina if contrary to the [62 N.C.App. 682] public policy of this state. Plaintiff also argues that the law of the state where the agreement was executed controls its construction and validity. Where the agreement is attacked as being contrary to public policy, the law of the forum controls. Plaintiff has attacked the separation agreement here as being contrary to public policy. We have relied on the laws of North Carolina in reaching our determination that the agreement is not invalid for that reason. Plaintiff’s contention in this regard is without merit.
Those portions of the trial court’s 20 May 1982 Order granting defendant’s Motions to Dismiss plaintiff’s First Cause of Action and to Compel Arbitration as to plaintiff’s First Cause of Action are affirmed.
VAUGHN, C.J., and BECTON, J., concur.