Murphy v. Murphy, 389

• Decision Date: 17 January 1964
• Docket Number: No. 389,389
• Citation: 134 S.E.2d 148,261 N.C. 95
• Court: North Carolina Supreme Court
• Parties: Anne Austin MURPHY v. Deleon Timothy MURPHY, Jr.

Page 148

134 S.E.2d 148

261 N.C. 95

Anne Austin MURPHY v. Deleon Timothy MURPHY, Jr.

No. 389

Supreme Court of North Carolina.

Jan. 17, 1964

Clyde C. Randolph, Jr., Winston-Salem, for plaintiff.

Harold R. Wilson, Winston-Salem, for defendant.

MOORE, Justice.

This is an action for subsistence and support for minor children.

The action was commenced 23 May 1963 by issuance of summons which was returned 28 May 1963 by the sheriff of Forsyth County endorsed, 'After due and diligent search and inquiry Deleon Timothy Murphy, Jr., is not to be found in Forsyth County, N. C., whereabouts unknown.'

The complaint in substance alleges: Plaintiff and defendant were married in December 1952, and are residents of Forsyth County, North Carolina. Three children, ages now 8, 5 and 3, were born to this union. Plaintiff and defendant were separated 7 May 1962 pursuant to a separation agreement of that date. By virtue of the separation agreement 'defendant is obligated to pay $40 per month for the support of each of the children * * * until such child reaches the age of 21 years.' Defendant's contributions to the support of the children have been irregular, and he is in arrears in the amount of $240. Defendant refuses to comply with the agreement with respect to the support of the children. Plaintiff needs and is entitled to the security and protection of a court order providing to her reasonable subsistence for the minor children. Defendant has abandoned the children and left the State, is in parts unknown and is about to dispose of his property for the purpose of defeating plaintiff's claim for support of the children. Defendant has an account in a substantial amount in the Wachovia Bank and Trust Company. Plaintiff is a fit and suitable person to have the custody of the children. Plaintiff prays for an award of custody, an allowance of 'reasonable subsistence to plaintiff for the use and benefit of the * * * children * * * pursuant to the provisions of G.S § 50-16,' temporary support without notice to defendant who has left the State and is in parts unknown, the application of the bank deposit to such support, and reasonable attorney fees.

On 24 May 1963 there was a hearing 'upon plaintiff's application for an order awarding to her child support from the estate of the defendant, pursuant to * * * G.S. § 50-16,' and the judge, finding that defendant had abandoned the children, left the State and was in parts unknown, awarded plaintiff custody of the children, appointed George E. Clayton, Jr., receiver to take charge of defendant's funds on deposit in the First Union National Bank and any other property or funds of defendant he might find within the jurisdiction of the court, the receiver to pay therefrom costs of the receivership and of this action, including an allowance of $100 to plaintiff's counsel, and $40 per month for the support of each child.

Pursuant to orders of 29 May, 1 June, 4 June and 19 June, 1963, the receiver took charge of the bank deposit of $395.76 and a deposit of $1000 which defendant had at Wake Forest College. It does not appear whether any of these funds have been disbursed by the receiver.

The defendant on 20 June 1963 made a special appearance through counsel and moved to dismiss the action 'on the ground that the court does not have jurisdiction over said defendant in that no service has been had on said defendant, either personally, by publication, or by any other means.'

Thereafter, defendant demurred to the complaint on the grounds that (1) plaintiff is not the real party in interest, and (2) the facts alleged fail to state a cause of action, and particularly do not state a cause of action under the provisions of G.S. § 50-16.

At a hearing on 19 July 1963 the court overruled both the motion to dismiss and the demurrer. Defendant excepted and appeals to this Court.

Certain language in the prayer for relief, quoted above, indicates that plaintiff assumes that the facts alleged constitute a cause of action under the provisions of G.S. § 50-16, entitled 'Alimony without divorce.' This statute in its original form was enacted in 1872 (Laws of North Carolina, 1871-72, Ch. 193, § 39). Prior thereto there was no statutory provision for alimony. Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790. To state a cause of action under G.S. § 50-16 it is necessary to allege (1) the marriage, (2) the separation of the husband from the wife and his failure to provide the wife and children of the marriage reasonable subsistence, i. e., abandonment, or some conduct on the part of the husband constituting cause for divorce, either absolute or from bed and board, and (3) want of provocation on the part of the wife. Schlagel v. Schlagel, supra; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Trull v. Trull, 229 N.C. 196, 49 S.E.2d 225; Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909.

Plaintiff's complaint does not allege that defendant has abandoned plaintiff, has failed to provide her with subsistence, or is guilty of any conduct which would be a ground for divorce, either absolute or from bed and board. On the contrary, it is alleged that plaintiff and defendant separated 7 May 1962 pursuant to a separation agreement. There is no suggestion that plaintiff is not satisfied with the agreement or that defendant has breached the agreement relative to plaintiff individually. The complaint is that defendant has abandoned the children and is in default in the monthly payments he agreed to make for the benefit of the children. At most the complaint states a cause of action for custody of and support for the minor children.

Prior to 1953 custody of children could not be determined in a proceeding under G.S. § 50-16. S.L.1953, Ch. 925, provided for such determination in lieu of habeas corpus (G.S. § 50-16, second paragraph). In 1955 it was enacted that 'The court may enter orders in a proceeding under this section relating to the support and maintenance of the children of the plaintiff and the defendant in the same manner as such orders are entered by the court in an action for divorce, irrespective of what may be the rights of the wife and the husband as between themselves in such proceedings.' S.L.1955, Ch. 1189--G.S. § 50-16, third paragraph. These amendments (of 1953 and 1955) mean that when a wife has instituted an action, upon proper allegations, for alimony without divorce she may in the original complaint, or either party may by motion in the cause, seek and thereby obtain a determination of the custody of the children of the marriage and an order for the support of such children, even if it be determined that the wife is not entitled to alimony. But an action for custody of and support for children of a marriage may not be maintained under G.S. § 50-16 in the absence of a claim, upon proper allegations, of alimony by the wife. Custody and support of children are determined under G.S. § 50-16 'in the same manner * * * [as] in an action for divorce.' In Cox v. Cox, 246 N.C. 528, 530, 98 S.E.2d 879, we said: 'When a divorce action is instituted, jurisdiction over the custody of the children born of the marriage vests * * * in the court before whom the divorce action is pending and becomes a concomitant part of the subject matter of the court's jurisdiction in the divorce action.' Thus, a controversy concerning child custody and support accompanies, is collaterally connected with, and is incidental to an action for divorce or for alimony without divorce, but may not be determined under G.S. § 50-13 and G.S. § 50-16 when it is the only cause of action alleged (except in those special and unusual circumstances provided for in the second paragraph of G.S. § 50-13, not applicable here. See In re Cranford, 231 N.C. 91, 56 S.E.2d 35).

The complaint does not state a cause of action under G.S. § 50-16, but this does not require that the demurrer be sustained. Plaintiff prays for relief in accordance with G.S. § 50-16, but 'The relief to which plaintiff is entitled is to be determined by the facts alleged in the complaint and established by the evidence, and not the prayer for relief. The fact that the prayer for relief demands relief to which plaintiff is not entitled does not preclude recovery on a theory supported by the facts alleged.' 3 Strong: N.C.Index, Pleadings, § 4, p. 610. If the complaint, in any portion of it or to any extent, presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, it will survive the challenge of a demurrer based on the ground that it does not allege a cause of action. Bailey v. Bailey, supra.

Plaintiff alleges that she and defendant entered into a separation agreement whereby 'defendant is obligated to pay $40 per month for the support of each of the children * * * until such child reaches the age of 21 years.' From other allegations it is inferred...