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Child Support Contracts

Clute v. Gosney, 2023-NCCOA-______ (2023).

  • Facts: In 1994, a couple got married and had two children. In 2006, they separated due to irreconcilable differences. On April 5, 2006, they entered into a separation agreement to settle their marital and property rights. The agreement included provisions for child support, the right to enforce the agreement through legal action, and a clause stating that the agreement would not be incorporated into a divorce judgment. The agreement was signed under seal and notarized. In April 2022, the wife filed a complaint in Mecklenburg County District Court, alleging breach of contract and, in the alternative, seeking child support based on North Carolina Child Support Guidelines. She claimed that the husband had violated the agreement by reducing child support payments unilaterally and failing to fulfill other obligations, such as medical expenses, insurance coverage, and college expenses for their son. The wife requested specific performance of the contract, attorney’s fees, and retroactive child support. In response, the husband filed a motion to dismiss under the North Carolina Rules of Civil Procedure. In August 2022, the trial court granted the husband’s motion to dismiss, denied the wife’s request for attorney’s fees, and dismissed her complaint with prejudice. The wife appealed this decision.

  • Issue: Did the trial court err in dismissing wife’s breach of contract claim?


  • Holding:


  • Rationale: Presumably, Husband’s arguments that were successful in his motion to dismiss were that Wife failed to allege breach of contract, and that the statute of limitations had barred Wife’s claim for breach. First, a court must construct a complaint liberally and should not dismiss unless it appears beyond a doubt that the party bringing the complaint cannot succeed under any set of facts. The elements of breach of contract are that a valid contract existed and that a party breached the terms. Separation agreements that are not incorporated are contracts. Wife’s complaint alleged that the parties entered into a separation agreement, and that Husband failed to abide by the terms for child support. That is enough to make a claim for breach. Second, Husband argued that the statute of limitations barred any claim arising from this contract because the action was not filed within three years of the breach. While it is true that the limitations period for a breach of contract is three years, a sealed instrument has a 10-year period. This separation agreement was signed under seal, as evidenced by the (SEAL) next to the signatures. Moreover, claims for breach accrue as soon as the right to maintain a suit arises. Since some of these alleged breaches occurred as late as 2021, they all fell within the appropriate time to bring a suit.