ng the Appellant to purchaseand maintain in force a policy of insurance upon hisown life, with the minor child, as the sole beneficiary of thepolicy: Sec. 20-115, Code of Laws of South Carolina, 1962; 27B C.J.S., Divorce, Sec. 319 (5), p. 619; 24 Am. Jur. 2d, Divorce, Sec. 832, p. 943; Sec. 855, p. 970; 97 P.2d 771; 432 P.2d 632; 27B C.J.S., Divorce Sec. 323 f., p. 729. As to the Court's erring in requiring theAppellant to deposit in a savings institution the sum of OneHundred Dollars per month to be used for the "future needand benefit" of the said minor child: Sec. 20-115, Code of Laws of South Carolina, 1962; 38 S.E.2d 471, 165 A.L.R. 1237. As to payments each month for the direct currentsupport of the minor child: 118 S.E.2d 171, 237 S.C. 532; 171 S.E.2d 704, 253 S.C. 486. As to theCourt's erring in increasing the amount of alimony requiredto be paid monthly by the Appellant to the Respondent aboveamount agreed upon by the parties and approved by the Courtin the Decree of Divorce: 138 S.E. 12; 27B Am. Jur.2d, Divorce, Sec. 678, p. 796; 171 S.E.2d 704, S.C. Messrs. Harvey, Harvey Battey, of Beaufort, for Respondent, cite: As to the Court's properly requiring the Appellantto purchase and maintain in force a policy of insuranceupon his life: Sec. 20-115 of the 1962 Code of Laws of South Carolina; 24 Am. Jur.2d, Divorce and Separation, Sec. 834 and Sec. 837; 131 So.2d 491; 13 Wis.2d 92, 108 N.W.2d 124; 208 N.E.2d 1, 58 Ill. App.2d 357; 363 P.2d 795, 198 Kan. 593; 126 P.2d 357, 52 Cal.App.2d 443; 57 Cal.Rptr. 652, 249 Cal.App.2d 623; 24 Am. Jur.2d, Divorce and Separation, Sec. 843; 27B C.J.S. Divorce, Sec. 319 (5) p. 620; 56 A.L.R.2d 1207. As to the Court'sproperly requiring the Appellant to establish a savings account: 3 A.L.R. 3d 1170.
Fuchs v. Fuchs, supra; Kiger v. Kiger, supra; Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350; In re Albertson, 205 N.C. 742, 172 S.E. 411. Otherwise, the parties to a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of the consent judgment entered thereon. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Brown v. Brown, 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; Holden v. Holden, supra. We hold that, since the separation agreement is in full force and effect except as to the custody of the children, the defendant is not entitled to recover from the plaintiff the cost for transporting her household goods and personal effects from Winston-Salem to Houston, Texas, and return to Winston-Salem, or the rental costs incurred in Houston, Texas, and the order entered below is modified accordingly.
Meyerl v. Meyerl, 84 N.W. 1109; Hefele v. Hefele, 160 A. 368; French v. French, 134 N.E. 33; Bradford v. Bradford, 4 N.E.2d 1005; Walker v. Walker, 94 A, 346, Ann Cas. 1916B 934; Scheinkman v. Scheinkman, 118 N.Y.S. 775; Verdier v. Verdier, 223 P.2d 214; Sellers v. Sellers, 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, s.c. 194 N.C. 673, 140 S.E. 440; Brown v. Brown, 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.
Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118. Otherwise, the parties to a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of the consent judgment entered thereon. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Brown v. Brown, 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; Holden v. Holden, supra."
Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118. Otherwise, the parties to a valid separation agreement are remitted to the rights and liabilities under the agreement or the terms of the consent judgment entered thereon. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Brown v. Brown, 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; Holden v. Holden, supra. The agreement involved herein has not been attacked by the plaintiff on the ground of fraud or coercion in its procurement or execution, consequently, so long as it stands unimpeached, the parties are bound thereby.
They are remitted to their rights and liabilities under the contract. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; s. c., 194 N.C. 673, 140 S.E. 440; Turner v. Turner, 205 N.C. 198, 170 S.E. 646. Brogden, J., concurring in the opinion of the Court involving a consent judgment in the case of Brown v. Brown, 205 N.C. 64, 169 S.E. 818, said: "Public policy recognizes the right of a wife to contract with her husband with reference to mutual property or with reference to separation agreements based upon mutual release of property rights. If the right of alimony and counsel fees is a property right, growing out of marriage, and the wife has the power to contract and does contract with reference thereto, with the approval and sanction of a court, then it would seem that a Judge had no discretion in the matter.
When a consent judgment for alimony is entered with the sanction of the court, it is a contract binding between the parties, and cannot be amended without their consent. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12; Morris v. Patterson, 180 N.C. 484, 105 S.E. 25; 17 Am. Jur., Divorce and Separation, Sec. 649. Whether an award of alimony rendered in connection with a divorce a vinculo can be modified is not before us for consideration for two reasons: one, in this jurisdiction permanent alimony is not awarded in a divorce a vinculo, Feldman v. Feldman, 236 N.C. 731, 73 S.E.2d 865; Stanley v. Stanley, 226 N.C. 129, 37 S.E.2d 118; Hobbs v. Hobbs, 218 N.C. 468, 11 S.E.2d 311; Duffy v. Duffy, 120 N.C. 346, 27 S.E. 28, and two, no such facts are before us. As to that question see: Annos.: 71 A.L.R. 726, 127 A.L.R. 742; 17 Am. Jur., Divorce and Separation, Sec. 645.
The plaintiff asserts that this question ought to be answered in the negative. To sustain her position, she lays hold on the second proviso in the statute embodied in G.S. 50-11 and cites these decisions: Simmons v. Simmons, 223 N.C. 841, 28 S.E.2d 489; Dyer v. Dyer, 212 N.C. 620, 194 S.E. 278; Howell v. Howell, 206 N.C. 672, 174 S.E. 921; and Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12. G.S. 50-11 is couched in this language: "After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, that no judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture; and, provided further, that a decree of absolute divorce upon the ground of separation for two successive years as provided in section 50-5 or section 50-6 shall not impair or destroy the right of the wife to receive alimony under any judgment or decree of the court rendered before the commencement of the proceeding for absolute divorce." The defendant insists that the question raised by the appeal should be answered in the affirmative.
The only question presented by the appeal is the correctness of the ruling below that plaintiff was not estopped to maintain her action on the contract between herself and the defendant set out in the complaint. The question of the validity of the contract is not presented, and it seems to have been conceded by the defendant that under the decisions of this Court in Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, and Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, the binding effect of the contract between the parties, if otherwise valid, is not affected by the subsequent divorce decree. The single assignment of error brought forward poses the question whether the plaintiff's answer in the divorce action and the judgment thereon render the subject of her present action res judicata.
A careful reading of Webster v. Webster, supra, will disclose that the opinion in that case is not out of accord with our present conclusion. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, in so far as it seems to conflict, is expressly overruled. Plaintiff contends that the court was for a further reason without jurisdiction.