Wilson v. Wilson, 388

• Decision Date: 17 January 1964
• Docket Number: No. 388,388
• Citation: 261 N.C. 40,134 S.E.2d 240
• Parties: Nettie Lowe WILSON v. Charles Calvin WILSON.
• Court: North Carolina Supreme Court

Page 240

134 S.E.2d 240

261 N.C. 40

Nettie Lowe WILSON v. Charles Calvin WILSON.

No. 388

Supreme Court of North Carolina.

Jan. 17, 1964

Henderson & Yeager, by Frank J. Yeager, Winston-Salem, for plaintiff appellant.

No appearance for defendant appellee.

RODMAN, Justice.

When man and woman marry, the law imposes a duty on the husband to support his wife. Bowling v. Bowling, 252 N.C. 527, 114 S.E.2d 228. Where he separates himself from his wife and fails to perform this duty, the wife may compel performance by judicial decree. G.S. § 50-16. He cannot, by merely providing support until he gets beyond the jurisdiction of the court, deprive his wife of this efficacious means of enforcing performance of the obligation imposed on him by law. Thurston v. Thurston, 256 N.C. 663, 124 S.E.2d 852.

An agreement between husband and wife which, recognizing an existing cessation of marital relations, provides for a settlement and adjustment of their respective property rights and obligations upon the assumption that marital relations will not be renewed is, when freely executed, acknowledged by the parties, found by the probating officer not to be unreasonable or injurious to the wife, and performed, binding and conclusive on the parties. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327; Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171; Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235; Williams v. Williams, N.C., 134 S.E.2d 227.

The question to be decided evolves upon this situation: The wife contracts to surrender her marital rights upon condition that the husband shall provide for her support in a fixed amount. Thereafter the husband refuses to perform the very condition which is the basis for the wife's promise to surrender her rights.

Is the wife limited to an action for breach of the contract? Or may she accept her husband's declaration that the instrument is 'a mere scrap of paper' and for that reason not binding on either?

Judicial decisions and text books on the law of contract are in agreement that where there is a material breach of the contract going to the very heart of the instrument, the other party to the contract may elect to rescind and is not bound to seek relief at law by an award for damages. This rule was stated by the Supreme Court of Florida in Steak House, Inc. v. Barnett, 65 So.2d 736, in this language: 'A covnant is dependant where it goes to the whole consideration of the contract; where it is such an essential part of the bargain that the failure of it must be considered as destroying the entire contract; or where it is such an indispensable part of what both parties intended that the contract would not have been made with the covenant omitted. Black on Rescission and Cancellation, 2nd ed., Vol. I, pp. 555, 601. A breach of such a covenant amounts to a breach of the entire contract; it gives to the injured party the right to sue at law for damages, or courts of equity may grant rescission in such instances if the remedy at law will not be full and adequate.' Dula v. Cowles, 52 N.C. 290; Carrow v. Weston, 247 N.C. 735, 102 S.E.2d 134; Wallace v. Smith, Okl., 240 P.2d 799; Wilson v. Corrugated Kraft Containers, Cal.App., 256 P.2d 1012; Sanders v. Meyerstein, D. C., 124 F.Supp. 77; Fish v. Valley Nat. Bank of Phoenix, Ariz., 167 P.2d 107; Village of Wells v. Layne-Minnesota Co., 240 Minn. 132, 60 N.W.2d 621; 12 Am.Jur. 972; 17 A C.J.S. Contracts p. 517; Restatement of Contracts, sec. 274; Black on Rescission and Cancellation, 2d ed., Vol. Vol. I, secs. 196, 214, 215.

Rescission, an equitable remedy, is allowed to promote justice. The right to rescind does not exist where the breach is not substantial and material and does not go to the heart of an agreement. Childress v. C. W. Meyers Trading Post, Inc., 247 N.C. 150, 100 S.E.2d 391; Jenkins v. Myers, 209 N.C. 312, 183 S.E. 529; North Carolina Highway Comm. v. Rand, 195 N.C. 799, 143 S.E. 851.

If the wife is content to look to the contract for relief, she may be awarded damages, not for failure to perform a duty, but because of her husband's breach of his contract. Neither the needs of the wife nor hardship imposed on the husband is a defense. Any judgment rendered for nonperformance is a debt. It can only be enforced by a levy on and sale of defendant's property. He cannot be imprisoned. N.C. Const., Art. I, sec. 16; Daniel v. Owen, 72 N.C. 340; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118. On the other hand, the duty of a husband to support his wife is imposed by law. The amount, if any, to be paid is fixed by order of the court, having due regard to the situation of the parties, the ability of the husband to pay, and the needs of the wife. A willful failure of the husband to comply with the court's order is a contempt, and can be punished as such by imprisonment. It is not within the constitutional inhibition against imprisonment for debt. Pain v. Pain, 80 N.C. 322; State v. Morgan, 141 N.C. 726, 53 S.E. 142.

The duty of the husband to support is a continuing one. The mere fact that a husband has performed his duty in the past is no defense against present failure to perform. Hence this Court rejected the plea of a defendant that his past performance of his separation agreement to provide monthly payments relieved him of his obligation to perform in the future. It said in Cram v. Cram, 116 N.C. 288, 21 S.E. 197: 'If we concede that the plaintiff had the right to demand that the agreement mentioned in the answer be enforced, had she chosen to sue upon it, the defendant will not, nevertheless, be allowed, after repudiating it by ceasing to pay or offer to pay according to its provisions, to set it up as a bar to her recovery in this action * * *. It is not the contract to pay a certain sum in lieu which quits the husband of his duty to furnish a support for the wife when he is discharged, but the actual payment, or attempt or offer to pay in fulfillment of his agreement. Kelly, Cont. Mar.Wom. p. 75; 1 Cord, [Legal and Eq. Rights of] Mar.Wom., §§ 144, 145. Having ceased to perform his agreement to pay the monthly allowance referred to in the pleadings, it will not avail him now as a defense to this proceeding for maintenance on the part of the plaintiff, to whom he admits that he was married, and whom it is conceded that he afterwards deserted.' (Emphasis supplied.)

In Rector v. Rector, 186 N.C. 618, 120 S.E. 195, plaintiff sought alimony without divorce. As a defense to her action defendant pleaded the separation agreement by which he obligated himself to pay $85 per month for plaintiff's support. He made three payments and then ceased further performance. Clark, C. J., disposed of defendant's contention that the separation agreement defeated plaintiff's right to alimony with this terse sentence: 'The defendant having failed to pay the installments as provided under the agreement, the plaintiff can maintain this action. Cram v. Cram, 116 N.C. 288, 21 S.E. 197.'

In Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, plaintiff, notwithstanding a separation agreement, sought the security of an award of alimony. She alleged that the husband was complying with the provisions of the contract and making the monthly payments there called for. She also said that the payments so made were sufficient for her support. She predicated her claim to an award of alimony on the fact 'that defendant has expressed to plaintiff his intention to obtain an absolute divorce at the end of two years from the date of their separation and has made statements causing plaintiff to anticipate and fear that defendant would not comply with said separation agreement after obtaining a divorce.'

The appellant's brief in the Butler case states the question the Court was called upon to decide in this language:

'Is a wife whose husband has been convicted of an assault upon her resulting in their separation entitled to an order for maintenance pendente lite under G.S. 50-16 when her husband is making the payments in conformity with the terms of a valid separation agreement but threatens to obtain a divorce on grounds of two years separation and discontinue payments upon his contract?'

Seawell, J., speaking for the Court, gave this answer:

'The Court is of opinion that the jurisdiction of the court invoked under G.S. § 50-16 is not barred by the separation agreement pleaded, and that within the frame of her present action, the plaintiff may seek such relief as she may be entitled to have.'

The existence of a separation agreement is not a bar to an award of alimony pendente lite. Oldham v. Oldham, 225 N.C. 476, 35 S.E.2d 332; Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171. If relief is here denied, those cases were erroneously decided.

The conclusion reached by this Court in Cram v. Cram, supra, is recognized in decisions elsewhere as correct. Meyerl v. Meyerl, 125 Mich. 607, 84 N.W. 1109; Hefele v. Hefele, 110 N.J.Eq. 457, 160 A. 368; French v. French, 302 Ill. 152, 134 N. E. 33; Bradford v. Bradford, 296 Mass. 187, 4 N.E.2d 1005; Walker v. Walker, 125 Md. 649, 94 A. 346, Ann.Cas.1916B, 934; Scheinkman v. Scheinkman, 64 Misc. 443, 118 N.Y.S. 775; Verdier v. Verdier, 36 Cal.2d 241, 223 P.2d 214; Sellers v. Sellers, 175 Ga. 47, 164 S.E. 769; Lindey: Separation Agreements and Ante-Nuptial Contracts, sec. 25.

The contention that the order denying alimony is supported by Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, Id., 194 N.C. 673, 140 S.E. 440; Brown v. Bronw, 205 N.C. 64, 169 S.E. 818; Turner v. Turner, 205 N.C. 198, 170 S.E. 646; Davis v. Davis, 213 N.C. 537, 196 S.E. 819; Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345; and Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323, and similar cases, is fallacious.

That these cases do not control the decision in the present case is, we think, apparent from an examination of them. In the first appeal in Lentz v. Lentz, supra, the Court held that a husband who had obtained a divorce could not thereafter be required to pay alimony, nor did...