Mullen v. Sawyer

Decision Date21 January 1971
Docket NumberNo. 51,51
CourtNorth Carolina Supreme Court
PartiesH. T. MULLEN, Jr., Administrator C.T.A. of the Estate of Walter W. Sawyer, Jr. v. Gwendolyn B. SAWYER.

Small, Small & Watts, by Thomas S. Watts, Elizabeth City, for petitioner-appellant.

Forrest V. Dunstan, Elizabeth City, for defendant-appellee.

MOORE, Justice.

At common law the father's duty to support his children did not survive the father's death. Gray v. Gray, 273 N.C. 319, 160 S.E.2d 1. This rule obtained even though the children were minors. Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d 224. As was said in Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732:

"The relationship of parent and child is a status, and not a property right.' 67 C.J.S. Parent and Child § 2, p. 628. At common law it is the duty of a father to support his minor children. Elliott v. Elliott, 235 N.C. 153, 69 S.E.2d 224; Green v. Green, 210 N.C. 147, 185 S.E. 651; Blades v. Szatai, 151 Md. 644, 135 A. 841, 50 A.L.R. 232. * * * The common law obligation of a father to support his child is not 'a debt' in the legal sense, but an obligation imposed by law. Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414. It is not a property right of the child but is a personal duty of the father which is Terminated by his death. Elliott v. Elliott, supra; Lee v. Coffield, 245 N.C. 570, 96 S.E.2d 726; Blades v. Szatai, supra. These common law principles have not been abrogated or modified by statute and are in full force and effect in this jurisdiction. G.S. § 4--1; Elliott v. Elliott, supra.'

The support of a child by a parent may be the subject of a contract, and the father may by contract create an obligation to support his child which will survive his death and constitute a charge against his estate, in which case the ordinary rules of contract law are applicable. Layton v. Layton, supra; Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81; Stone v. Bayley, 75 Wash. 184, 134 P. 820; 6 Strong's N.C. Index 2d, Parent and Child § 7, p. 168.

A consent judgment is a contract between the parties entered upon the records of the court with the approval and sanction of a court of competent jurisdiction. It is construed as any other contract. Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826; 5 Strong's N.C. Index 2d, Judgments § 10.

'The heart of a contract is the intention of the parties, which is ascertained by the subject matter of the contract, the language used, the purpose sought, and the situation of the parties at the time.' Pike v. Wachovia Bank & Trust Co., 274 N.C. 1, 161 S.E.2d 453. In the present case we must examine the contract created by the consent judgment to determine whether or not Dr. Sawyer intended to create a debt in a legal sense which would survive his death and become an obligation of his estate. The defendant contends that under the decision in Layton v. Layton, supra, the contract entered into by the parties did not create such an obligation.

In Layton the wife's action for alimony and child support was terminated by a consent judgment in which the husband agreed to pay $50 a month for the support of two children and to provide a dwelling house. In holding that this consent judgment did not manifest an intention that the obligation survive the husband's death, this Court said:

'* * * It is clear that the primary purpose of the consent order was to fix the amount of support. * * * There is no provision, express or clearly implied, that the payments were to be continued after defendant's death. The order creates no lien upon any of E. C. Layton's property. There is no special consideration running to him as was the case in Church v. Hancock, supra (261 N.C. 764, 136 S.E.2d 81). The contract is silent as to the time of termination of support payments. * * * It is clearly the intention of the father to meet his common law obligation to his children, and nothing more, and it was the intent and purpose of plaintiff and defendant that this obligation be fixed and certain as to amount. There is nothing in the contract which imposes upon E. C. Layton any obligation or debt over and beyond that required and limited by the common law principles stated above.'

In Layton the Court does set out certain provisions or conditions in the contract which can be considered in determining the intent. These are: (1) Does the language create a lien upon the father's property? (2) Is there a special consideration in favor of the father? (3) Is there a specific termination time for the payments? (4) Is there an obligation in excess of the common law duty to support? These elements in themselves may not be conclusive, but in the present case they may assist in determining the intent of Dr. Sawyer at the time he signed the consent judgment.

Applying the criteria of Layton, the consent judgment makes it clear that Dr. Sawyer intended the Camden County farm to be security for the support payments and that these payments were to terminate at age 18--a definite time. There was a 'special consideration' for the obligations which Dr. Sawyer assumed in the consent judgment--his monthly payments were reduced, and an arrearage of $4,800 was cancelled for $1,600. The consent judgment obligated Dr. Sawyer to provide each child a four-year college education without limit as to time or amount. This clearly exceeded the requirements of the common law. Church v. Hancock, supra; Lee v. Coffield, 245 N.C. 570, 96 S.E.2d 726. Considering these and the other provisions of the consent judgment, we hold that Judge Mintz correctly decided that Dr. Sawyer intended his agreement to support Sarah and provide Sarah and Walter with a four-year college education should survive his death and become an obligation of his estate.

Defendant contends, however, that Sarah forfeited her right to support and to a college education by marrying. Sarah testified that she never enrolled at any college or university because she was 'financially unable to attend.' She further testified: 'I want to go to college now because * * * I would like to better myself as a person and should anything happen to my husband, college would insure me a job to support myself and my son.' It was stipulated by counsel that Sarah had never received any money for her college education. The consent judgment contained no provision that Sarah's support or education would be affected by her marriage.

In Church v. Hancock, supra, the husband and wife entered into a separation agreement. In consideration of her relinquishment of certain rents, he agreed to pay her a monthly sum for the support of herself and the children of the marriage. The agreement provided for a reduction if the wife remarried or in the event of the death of a child. Otherwise, the payments continued to a specific date. One of the children married. The Court held that the marriage of the child did not reduce the payments, stating:

'* * * The terms of the contract under consideration are plain and unambiguous. The parties provided for those contingencies which would, upon occurrence, reduce Charles H. Hancock's stipulated monthly payments. They were the plaintiff's remarriage and the death of a child or children. The separation agreement contained no provision for a reduction in the event of a child's marriage * * *.'

While Church referred only to payments for support, the reasoning applies equally to the obligation to provide for a college education. In the present case, Dr. Sawyer agreed to assume the burden of a four-year college education for each of his children without any proviso as to marriage. We hold that Sarah's marriage did not relieve Dr. Sawyer's estate of the obligation to support her until she arrived at the age of 18 or of the obligation to provide her with a four-year college education.

Defendant further contends that Walter forfeited his right to a college education by refusing to attend the college of his father's choice, as provided for in the consent judgment. His father selected Old Dominion in Norfolk, Virginia as the college for Walter to attend, but added an additional requirement, not provided for in the consent judgment, that Walter reside in the home of Dr. Sawyer. Walter entered Old Dominion in the fall of 1962. He testified he was apprehensive about living in his father's house since he felt he and his sister had not been treated properly when they last visited his father and stepmother in 1958. Ho...

To continue reading

Request your trial
23 cases
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Superior Court
    • August 13, 2001
    ...(1970); Dupuis v. Click, 135 N.H. 333, 604 A.2d 576 (1992); Keehn v. Keehn, 137 A.D.2d 493, 524 N.Y.S.2d 238 (1988); Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425 (1971); Streight v. Streight's Estate, 226 Or. 386, 360 P.2d 304 (1961); Kennedy v. Kennedy, 270 S.C. 358, 242 S.E.2d 417 (1978......
  • Abrego v. Abrego
    • United States
    • Oklahoma Supreme Court
    • May 21, 1991
    ...1027 (1982); Budig v. Budig, 481 S.W.2d 95, 97 (Ky.1972); McKamey v. Watkins, 257 Ind. 195, 273 N.E.2d 542 (1971); Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425, 428 (1971); Fower v. Fower Estate, 448 S.W.2d 585, 587 (Mo.1970); Bailey v. Bailey, see note 3, 471 P.2d at 222, supra; Whitman ......
  • Benson ex rel. Patterson v. Patterson
    • United States
    • Pennsylvania Supreme Court
    • August 26, 2003
    ...241 (N.Y.App.Div.1988) (no common law or statutory duty to impose obligation of support on parent post-mortem); Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425, 428 (1971) (contract entered into created obligation to support children after death); Abrego v. Abrego, 812 P.2d 806, 812-13 (Okla......
  • Yount v. Lowe
    • United States
    • North Carolina Supreme Court
    • June 26, 1975
    ...does not limit the scope or affect the validity of the easement granted. Since a consent judgment is a contract, Mullen v. Sawyer, 277 N.C. 623, 178 S.E.2d 425 (1971), '(t)he rules which courts have evolved for the interpretation of contracts are applicable to consent judgments. (Citations ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT