McKaughn v. McKaughn

• Decision Date: 16 June 1976
• Docket Number: No. 7625DC95,7625DC95
• Citation: 225 S.E.2d 616,29 N.C.App. 702
• Court: North Carolina Court of Appeals
• Parties: Robert L. McKAUGHN, Jr. v. Margery S. McKAUGHN.

Page 616

225 S.E.2d 616

29 N.C.App. 702

Robert L. McKAUGHN, Jr. v. Margery S. McKAUGHN.

No. 7625DC95.

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.

CLARK, Judge.

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).

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...