Bowden v. Bowden

• Decision Date: 26 January 1983
• Citation: 426 So.2d 448
• Parties: Mark Maxwell BOWDEN, A minor v. Barbara Morgan BOWDEN, Executrix of the Estate of William Anton Bowden, Jr., Deceased. Civ. 3593.
• Court: Alabama Court of Civil Appeals

Page 448

426 So.2d 448

Mark Maxwell BOWDEN, A minor v. Barbara Morgan BOWDEN, Executrix of the Estate of William Anton Bowden, Jr., Deceased.

Civ. 3593.

Court of Civil Appeals of Alabama.

Jan. 26, 1983.

John Joseph Smith, Jr. of Smith & Smith, Birmingham, for appellant.

L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellee.

WRIGHT, Presiding Judge.

This case originated from an order of the probate court of Jefferson County, denying a claim filed by the guardian of Mark Bowden, a minor, against the estate of his deceased father. The denial of the claim was appealed to the circuit court. After hearing in circuit court, judgment was entered allowing the claim but ordering credit against it for social security payments received by the son after the death of the father.

FACTS

The parents of Mark Bowden were divorced in North Carolina in 1974. Prior to the divorce, the parents entered into a separation agreement. That agreement contained the following:

"6. The Husband agrees that commencing with the Month of December, 1974, and during each month thereafter, on specific dates to be agreed upon by the parties after the Husband's pay dates are established, the Husband shall pay to the Wife for the support and maintenance of Mark Maxwell Bowden, the minor child born to the parties, the sum of $300.00, which payments shall continue until said child dies or attains the age of twenty-two (22) years, whichever first occurs. The Husband is presently unemployed. The amount of $300.00 to be paid each month for the support of Mark Maxwell Bowden by the Husband is based on his current annual salary of approximately $30,000.00. The Husband will voluntarily increase the monthly payments proportionately if his income increases. The Husband will promptly notify the Wife of any change in his salary, and will furnish the Wife with copies of his W-2 forms at the end of each calendar year so that she may verify his income. The parties agree that the Husband may hereafter claim Mark Maxwell Bowden as a dependent on his federal and state income tax returns. However, Husband may claim both Mark Maxwell Bowden and Wilson Livingston Bowden as dependents on his federal and state income tax returns for the year 1974.

"7. The Husband will purchase and maintain life insurance policies, term or ordinary life, sufficient to insure that the monthly payments for the support of Mark Maxwell Bowden provided for in this agreement shall be paid in the event of the death of the Husband, or in the amount of $40,000.00, whichever is less. If, and only if, the Husband shall fail to maintain an adequate amount of the aforesaid insurance, an amount equal to the difference in the amount of such insurance maintained and the sum of the monthly payments remaining to be paid at the date of death of the Husband shall be paid from the assets of the Husband's estate. The Wife shall be named beneficiary in said insurance policies. If the total amount remaining to be paid for the support of Mark Maxwell Bowden at the date of death of the Husband is less than the total amount of the proceeds of the insurance policies provided for in this paragraph, the balance shall be paid by the Wife to the estate of the Husband.

"21. This agreement shall be construed and governed in accordance with the laws of the State of North Carolina."

The father died testate in Jefferson County, Alabama, in 1980. His will was admitted to probate.

At the time of death the father did not have in effect the insurance policy as required in the agreement. Mark was under the age of twenty-two years. As provided by the agreement, claim was made against the estate for the lump sum amount of $29,400.00.

Mark had received Social Security benefits monthly in amounts exceeding $300.00 per month from the date of his father's death in July 1980 through March 1982 in a total amount of $8,770.80. It is not clear what Mark's age is at present, but it is noted in the decree of the circuit court that Social Security benefits were no longer payable to dependent children beyond age eighteen. The court also noted in its decree that North Carolina law was to be applied and that it is the law of that state that agreements to pay support past the legal age of eighteen are enforceable. However, the court determined that credit was due to be allowed against such support obligations for Social Security benefits received through the father's account.

It is agreed that North Carolina law is to be applied in this case. However, it is our view that in this instance it is not materially different from that of Alabama. It is the law of North Carolina that an agreement between parents to support a child past the age of legal responsibility is enforceable as any other contract, even against the estate of the deceased parent. Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964); Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965); Harding v. Harding, 29 N.C.App. 633, 225 S.E.2d 590 (1976). This court has held that an agreement to support a child beyond...