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Foy v. Foy

Filed: May 4, 1982.

BARBARA FOY
v.
JACK FOY



Appeal by plaintiff and defendant from Brown, Judge. Judgment entered 28 May 1981 in District Court, Mecklenburg County. Heard in the Court of Appeals 31 March 1982.

Hill, Judge. Judges Wells and Becton concur.

Hill

Plaintiff and defendant were married on 15 September 1976. Plaintiff had a son, Blaine Ashton Foy, by her first husband, who was adopted by defendant following the marriage. Upon their separation, the parties executed the 5 December 1977 separation

agreement which in addition to the provisions stated above, provided as follows:

9. Wife agrees to and does hereby release husband from any claim for child support for Blaine Foy and as between themselves wire [sic] agrees to indemnify Husband for any liability for child support which the Husband may incur as a result of his obligation to support the above name child under the laws of the State of North Carolina.

On 2 January 1980, plaintiff filed a petition praying the court to terminate defendant's parental rights in Blaine. On 1 May 1981, petitioner filed an amendment to her 2 January 1980 petition, dated 6 February 1980, in which she asked the court to grant custody of Blaine to her in the event that defendant's parental rights are not terminated. On 8 February 1980, plaintiff signed a statement on the 1 May amendment saying, "Separation agreement is null & void and as of Feb. 8th, 1980 no money is owed by Jack Foy to Barbara Foy." Defendant also signed a statement on 8 February saying, "I give up all legal and parental rights of Bland [sic] Foy from this day forth."

By deposition, defendant testified that "[t]he separation agreement provides in it for me to pay Barbara Foy $10,000.00; that took care of Blaine. I am saying that our agreement in the contract was for child support."

We first address defendant's assignment of error by which he contends that the trial judge erred in granting plaintiff's motion for summary judgment against him. Of course, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c).

In the present case, defendant contends that the 5 December 1977 separation agreement is null and void by virtue of plaintiff's 8 February 1980 statement. However, the only apparent consideration for that agreement is defendant's statement of the same date that he will thenceforth give up his parental rights in Blaine.

We are advertent to the fact that no agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court.

Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963). Accord Wyatt v. Wyatt, 27 N.C. App. 134, 218 S.E.2d 194 (1975). This rule of law has developed because of the great importance the State ascribes to the custody and maintenance of children. "The interests of the State in the welfare of the child transcends any ...


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