Hinkle v. Hinkle
| Decision Date | 14 January 1966 |
| Docket Number | No. 455,455 |
| Citation | 146 S.E.2d 73,266 N.C. 189 |
| Parties | Talmadge Gray HINKLE v. Ozelle Hodges HINKLE. |
| Court | North Carolina Supreme Court |
Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Norwood Robinson and Robert Melott, Winston-Salem, for plaintiff.
Craige, Brawley, Lucas & Horton and William T. Graham, Winston-Salem, for defendant.
The plaintiff in his appeal assigns as error that portion of the order entered below which requires him to pay the defendant for moving costs, attorneys' fees, and rent, in the sum of $4,368.
It is provided in pertinent part in G.S. § 6-21 as follows:
'Costs in the following matters shall be taxed against either party, or apportioned among the parties, in the discretion of the court: * * *
'(4) In actions for divorce or alimony; and the court may both before and after judgment make such order respecting the payment of such costs as may be incurred by the wife, either by the husband or by her from her separate estate, as may be just. * * *
'The word 'costs' as the same appears and is used in this section shall be construed to include reasonable attorneys' fees in such amounts as the court shall in its discretion determine and allow.'
The plaintiff concedes in his brief that the court was empowered by the above statute to tax the costs against him and to award defendant reasonable attorneys' fees in connection with the custody hearing in the court below. Therefore, on plaintiff's appeal, the question for determination is whether or not on the facts revealed by the record, should the court have allowed the defendant's motion for judgment against the plaintiff for the costs of transporting the defendant's household goods and personal effects from Winston-Salem to Houston, Texas, and from Houston, Texas, back to Winston-Salem, in the sum of $2,490 and for the rent advanced on the house in Houston in the sum of $378.00?
The defendant points out in her brief that at the time of the hearing below, the plaintiff and the defendant were living separate and apart under the terms of a separation agreement dated 5 April 1965; that by this voluntary agreement she was granted 'the care and custody of the Children until they shall attain the age of 21 years * * *,' and the right to 'reside at such * * * places * * * as * * * she may desire, * * *' so long as she did not take 'the Children out of the continental limits of the United States of America * * *.'
The plaintiff alleged in his motion in the cause in action for absolute divorce that he had complied with every financial requirement he assumed under the provisions of the separation agreement entered into by the parties. This allegation was not controverted in the hearing below.
The question posed is not where the defendant may live, but can she require the plaintiff to pay the costs of transportation and the rental of a house or apartment when she leaves the house conveyed to her under the terms of the separation agreement? Under the terms of the separation agreement, the defendant cannot obligate the plaintiff to pay anything for any purpose other than as provided in the separation agreement. There is nothing in the separation agreement requiring the plaintiff to pay defendant's moving expenses or rental costs, whether she lives in Winston-Salem or elsewhere.
The right of a married woman to support and maintenance is held in this jurisdiction to be a property right. Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235, and cited cases. The right of support being a property right, the wife may release such right by contract in the manner set out in G.S. § 52-12, now G.S. § 52-6. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487.
The provisions of a valid separation agreement, including a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Such agreement, including consent judgments based on such agreements with respect to marital rights, however, are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Fuchs v. Fuchs, supra; Kiger v. Kiger, supra; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350; In re Albertson, 205 N.C. 742, 172 S.E. 411. Otherwise, the parties to a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of the consent judgment entered thereon. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Brown v. Brown, 205 N.C. 64, 169 S.E. 818; Turner v. Turner, 205 N.C. 198, 170 S.E. 646; Davis v. Davis, 213 N.C. 537, 196 S.E. 819; Holden v. Holden, supra.
We hold that, since the separation agreement is in full force and effect except as to the custody of the children, the defendant is not entitled to recover from the plaintiff the cost for transporting her household goods and personal effects from Winston-Salem to Houston, Texas, and return to Winston-Salem, or the rental costs incurred in Houston, Texas, and the order entered below is modified accordingly.
On the defendant's appeal, she assigns as error the finding of fact that the plaintiff was a fit and suitable person to have costody of the minor children born of the marriage, and that it was to the best interest of the children that plaintiff have their custody.
When the plaintiff filed his motion for an absolute divorce, he alleged the execution of the separation agreement between the plaintiff and the defendant, under the terms of which the defendant had been given the custody of the minor children born of the marriage with visitation privileges to the plaintiff, and which further provides for the support of the children by the plaintiff. Therefore, the plaintiff further alleged, the custody of the minor children born of the marriage was not at issue in the action. The question of custody of the children involved was first brought into the action for absolute divorce when the defendant filed answer to the complaint on 4 August 1965. The defendant admitted each and every allegation in the complaint except the allegation that the custody of the minor children born of the marriage was not at issue, and alleged she was a fit and proper person to have custody of said children and prayed for an order awarding her custody of the children. The motion in the cause filed by plaintiff on 5 August 1965, requesting the court to award him custody of the minor children, and defendant's answer constituted the basis for the custody hearing.
The evidence is voluminous and sharply...
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