Mullen v. Sawyer

• Decision Date: 24 June 1970
• Docket Number: No. 701SC262,701SC262
• Citation: 174 S.E.2d 646,8 N.C.App. 458
• Parties: H. T. MULLEN, Jr., Administrator c.t.a. of the Estate of Walter W. Sawyer, Jr. v. Gwendolyn B. SAWYER.
• Court: North Carolina Court of Appeals

Page 646

174 S.E.2d 646

8 N.C.App. 458

H. T. MULLEN, Jr., Administrator c.t.a. of the Estate of Walter W. Sawyer, Jr. v. Gwendolyn B. SAWYER.

No. 701SC262.

Court of Appeals of North Carolina.

June 24, 1970.

Certiorari Allowed Sept. 1, 1970.

Small, Small & Watts, by Thomas Watts, Elizabeth City, for petitioner appellee.

Forrest V. Dunstan and Gerald F. White, Elizabeth City, for respondent appellant.

MALLARD, Chief Judge.

The judgment of Judge Mintz in this case covers almost eighteen pages of the record. In this judgment Judge Mintz made thirty-two findings of fact, fourteen conclusions of law, and there are nine different paragraphs in the adjudication portion of the judgment. To each of the findings of fact, except one, and to each conclusion of law, and to each paragraph of the judgment, the respondent excepts. There are eighty-two exceptions in the record and eighty-two different assignments of error. To each of the findings of fact excepted to, the respondent asserts in her exception that 'same is not supported by competent evidence and is not supported by the findings of fact.' The sole exception that does not have the above as the basis of the exception is that the defendant excepts to the conclusion of law designated (m) in said judgment to the effect that '(t)he marriage of Sarah Margaret Foust did not waive or invalidate her right to have the provisions of the 1958 consent judgment enforced.'

To each of the nine separate parts of the adjudication in the judgment, the defendant excepts in the following language: 'For that same is not supported by competent evidence, is not supported by the findings of fact, and is not supported by the conclusions of law, and is erroneous.'

In addition, the eighty-second exception and assignment of error is that 'the trial court committed prejudicial error in signing and entering the said foregoing judgment.'

It was stipulated, among other things, that 'the sum of $2,255.00 in federal estate tax was paid to the United States government as a result of the death of Dr. Walter W. Sawyer, Jr. The sum of $1,975.31 in Virginia inheritance tax was paid to the Commonwealth of Virginia as a result of the death of Dr. Walter W. Sawyer, Jr. The sum of $298.18 in North Carolina inheritance tax was paid to the State of North Carolina as a result of the death of Dr. Walter W. Sawyer, Jr. All such estate and inheritance taxes were paid by the Virginia Executrix.'

It was further stipulated that '(n)o caveat has been filed against the will of Dr. Walter W. Sawyer, Jr., either in North Carolina or Virginia.'

The evidence in this case tended to show that Walter and Sarah were children of Dr. Sawyer and his first wife, Miriam Sherlock Sawyer, who were divorced on 27 October 1954; that thereafter, Dr. Sawyer and the respondent herein were married and were living in Virginia at the time of his death; that Walter was born on 24 April 1944, and Sarah was born on 13 September 1949; and that Dr. Sawyer and his first wife entered into a separation agreement, and thereafter the consent judgment involved in this present action was entered into.

The consent judgment required Dr. Sawyer to make certain payments to Miriam Sawyer King 'for the use and support of the two said minor children.' In addition thereto, the following part of said consent judgment is pertinent for a proper understanding of this case:

'It is further ORDERED that the defendant, Walter W. Sawyer, Jr. assume the burden of a four year college education for each of said children at the college of his choosing and that such time he shall deal directly with said minor children in supplying the necessary funds for their scholastic requirements, but in the event at any period during said four years of such college education aforementioned, either or both of said children should refuse to go or to continue with college at any interim period, or should either or both of said children fail to pass their work, or by misconduct be refused by the college authorities reentry thereto, then, in such event, the said defendant is relieved of further educational responsibilities.'

Other parts of the consent judgment dated 3 March 1958 are quoted in an opinion of this court filed in the case of Sarah Margaret Sawyer, by her next friend, Miriam S. Sawyer, and Walter W. Sawyer, III v. Gwendolyn Brinkley Sawyer, reported in 4 N.C.App. 594, 167 S.E.2d 471 (1969). In that case plaintiffs sought to recover of the defendant on the consent judgment. These same parties were also before this court upon an appeal by the plaintiffs from an order setting aside a judgment of default and inquiry. The opinion in that case is reported in 1 N.C.App. 400, 161 S.E.2d 625 (1968).

The evidence also reveals that Walter, after having been graduated from high school in the Spring of 1962, attended Old Dominion College, the college of Dr. Sawyer's choice. Walter entered this college in the Fall of 1962 but voluntarily quit and withdrew that same Fall and did not thereafter attend the school chosen by his father.

The evidence tended to show that prior to his death on 8 October 1965, Dr. Sawyer had made the required support payments to his first wife for the support of the children as required by the 1958 consent judgment. At the time of Dr. Sawyer's death, the son, Walter, was twenty-one years of age. Sarah reached her eighteenth birthday on 13 September 1967, and it was stipulated that she did not receive any support from Dr. Sawyer or his estate from 8 October 1965 through 13 September 1967.

It was also stipulated that neither of Dr. Sawyer's children received any money from him for their college education with the exception of the money paid for the benefit of Walter during the time he lived in his father's home in Virginia and attended Old Dominion College. It was also stipulated '(t)hat the Will of Walter Wesley Sawyer, Jr. has been duly filed and probated by the Clerk of Superior Court of Camden County, North Carolina, and that H. T. Mullen, Jr. has been duly qualified and is acting in his fiduciary capacity as Administrator C.T.A. That there is no personal property of the estate of Walter Wesley Sawyer, Jr. to be found in the State of North Carolina.'

The evidence in this case also tended to show that Sarah was graduated from high school in 1967 and that shortly thereafter, she...