Spencer v. Spencer, 7718DC823

• Decision Date: 15 August 1978
• Docket Number: No. 7718DC823,7718DC823
• Court: North Carolina Court of Appeals
• Parties: Lorraine B. SPENCER v. Richard E. SPENCER.

Page 805

246 S.E.2d 805

37 N.C.App. 481

Lorraine B. SPENCER v. Richard E. SPENCER.

No. 7718DC823.

Court of Appeals of North Carolina.

Aug. 15, 1978.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Greensboro, for plaintiff-appellee.

Janet L. Covey, Greensboro, for defendant-appellant.

MORRIS, Judge.

We will address first the constitutional issues raised by defendant's appeal. Defendant alleges that G.S. 52-6 is violative of the equal protection clauses of the United States Constitution and the Constitution of North Carolina; that G.S. 52-6 confers a valuable right upon women; and that the separation agreement would be void had the plaintiff not been subject to a privy exam. He concludes that the proper means by which to cure the constitutional defect of G.S. 52-6 is to treat him as if he were a woman who had been denied a privy exam and to declare the separation agreement void since he has been denied the valuable right of a privy exam. Plaintiff summarily dismisses defendant's argument. She contends that this case is controlled by Butler v. Butler, 169 N.C. 584, 86 S.E. 507 (1915). We do not feel that defendant's arguments should be so lightly dismissed; nor do we believe that the present case is necessarily controlled by Butler v. Butler, supra.

In addressing defendant's argument, we must first examine the history behind G.S. 52-6. At common law, the fiction of the unity of husband and wife rendered all deeds of separation void. Our Court was especially troubled by the possibility of a separation agreement.

"The relation of husband and wife is at the foundation of society. It is natural, as well as conventional. It was the relation of the first pair of our race, and has existed ever since. It is universal in civilization, and not uncommon in barbarism. It is indispensable to that other important relation of parents and children. Incident to it are its inseparable and indissoluble characteristics--its oneness-- 'they shall be no longer twain but one flesh,' 'to live Together after God's holy ordinance,' 'so long as they both shall live.' . . . It is formed in perfect simplicity, and preserved in religious purity. The husband is the stronger and rules as of right; the wife is the weaker, and submits in gentleness. The frailties of each are excused or forgiven, their sentiments are in unison; their manners in conformity; their interests the same; their joys and sorrows mutual; their children are a common bond, and a common care; and they live, not separately, but together--the nursery of morality and piety, and the bulwarks of society.

How different from this is marriage, quarrel, separation!--the anomalous condition of a husband without a wife, a wife without a husband, parents without children, and children without parents! Such relations too surely follow Deeds of separation. . . .

Thus much may be said where the separation is voluntary with both parties; but if allowed, it would open the door to fraud and imposition by one to compel a separation and settlement on the part of the other. An imperious husband, secure from exposure in the courts, would practice cruelties towards a faultless wife, to compel a separation; and she, to buy her peace, would take such terms as he might offer.

We do not, however, put the case upon the ground of fraud or imposition on the part of the husband, but upon the broad ground that articles of separation between husband and wife, voluntarily entered into by them, either in contemplation of or after separation, are against law and public policy, and will not be enforced in this court. " Collins v. Collins, 62 N.C. 153, 155-159 (1867).

Though the Court had earlier raised questions concerning the continuing validity of Collins v. Collins, supra, in such cases as Sparks v. Sparks, 94 N.C. 527 (1886), it was not until 1912 that the Court expressly upheld the validity of a separation agreement. In Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327 (1912), the Court held that

"In Collins v. Collins, 62 N.C. 153, 93 Am.Dec. 606, the Court made definite decision 'that articles of separation between husband and wife, whether entered into before or after separation, were against law and public policy and therefore void.' Since that decision was rendered in 1867, our statutes upon 'marriage and marriage settlements and contracts of married women', as entitled in the code of 1883 and contained with amendments in Revisal 1905, ch. 51, have made such distinct recognition of deeds of this character, more especially in Revisal 1905, secs. 2116, 2108, 2107, etc., that we are constrained to hold that public policy with us is no longer peremptory on this question, and that under certain conditions these deeds are not void as a matter of law. This change in our public policy, which has been not inaptly termed and held synonymous with the 'manifested will of the State,' (Jacoway v. Benton, 25 Arkansas (625), p. 634, has been already recognized in several of our decisions, as in Ellett v. Ellett, 157 N.C., 161, 72 S.E. 861; Smith v. King, 107 N.C., 273, 12 S.E. 57; Sparks v. Sparks, 94 N.C., 527. . 27 ." 158 N.C. at 413, 74 S.E. at 329.

Revisal 1905, chapter 51, section 2107, the statute which governed Archbell v. Archbell, supra, provided that contracts between a husband and wife would be effective to transfer any interest in real estate, including the income interest, for longer than three years, only if the wife were privately examined. (Its wording closely parallels the language of G.S. 52-6.) Section 2108 of chapter 51 of the Revisal of 1905 validated contracts executed in conformity with section 2107, and section 2116 of that same chapter conferred "free trader" status upon a woman separated under a deed of separation. These provisions parallel the earlier provisions of sections 1831, 1835, and 1836 of chapter 42 of the Code of 1883.

One can see that the forerunner of G.S. 52-6 was viewed as an act increasing the rights of women. In Sims v. Ray, 96 N.C. 87, 2 S.E. 443 (1887), the Court in discussing a deed from the wife to her husband, held as follows:

"(W)e take it as settled, that prior to the act of 1871-'2, incorporated in The Code, Secs. 1835, 1836, the wife could not by deed convey to her husband; the doctrine being, as laid down in Malone on Real Property, 600, that 'unless the wife convey under power to dispose of the same, her disabilities are a bar, and on her death the land descends to her heirs;' and (except as authorized by Secs. 1835 and 1836 of The Code,) this is still the law. . . ." 96 N.C. at 89, 2 S.E. at 445.

At the time of its enactment and at the time our Supreme Court examined its constitutionality, the statute requiring a privy exam conferred a right upon women which they had previously been denied the right to enter into separation agreements. Thus, even though the examination requirement may have restricted the exercise of that right, the courts focused upon the new right conferred by the statute.

The case which expressly addressed the issue of constitutionality, ¹ Butler v. Butler, supra, only made the general statement that the statute was constitutional and then cited three cases which did not discuss the constitutionality of the statute. Also, we note that no question as to the statute's constitutionality was raised at trial in Butler v. Butler, supra; nor was the question discussed in the parties' briefs. Furthermore, since the decision in Butler v. Butler, supra, the United States Supreme Court has radically altered its position on the constitutionality of classifications based upon gender. Compare In re Lockwood, 154 U.S. 116, 14 S.Ct. 1082, 38 L.Ed. 929 (1894), where the Court held that women could be constitutionally denied admission to the bar solely on the basis of sex, with Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), where the Court held a gender based classification of the Social Security Act unconstitutional even though, when enacted, it was intended to be benevolent toward women and even though it was based upon an empirically demonstrable difference.

The Constitution must be applied in the light of the facts of the case before the court. The great principles underlying our system of government cannot be sacrificed, but neither can a court ignore reality. We should feel no need to apologize when the great tides of human events demand that we reappraise and reapply our Constitution in the light of changed facts. The role of women in our society has changed drastically since 1915. At the time Butler v. Butler, supra, was decided, women could not vote. Today, two women are members of the Cabinet of the President of the United States; a woman is chairman of the majority political party of this State; and two women serve as members of the Cabinet of the Governor of this State. At the turn of the century, women could be denied admission to the bar on the basis of gender. Today the Chief Justice of North Carolina is a woman, as is the Chief Justice of the Supreme Court of the most populous state in the Union. At the turn of the century, women rarely left the home unescorted. Under the previous administration, a woman served as the United States Ambassador to our closest ally, Great Britain. This changing role of women must be considered by courts as part of the facts of the case before it. Because of the rapid rate of change, there would be genuine distinctions in cases arising in 1915, 1960, and 1978.

In a day when women were denied education, excluded from virtually all legal and commercial matters, and sheltered in the home, we do not doubt that G.S. 52-6 could pass constitutional muster. See Butler v. Butler, supra. We are equally convinced, however, that the statute cannot do so any longer. See Weinberger v. Wiesenfeld, supra; Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Whether the...