Cole v. Earon , 26 N.C. App. 502 ( 1975 )

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216 S.E.2d 422 (1975) 26 N.C. App. 502
Virginia L. COLE
v.
John J. EARON.
No. 7521DC175.
Court of Appeals of North Carolina.
July 2, 1975.
*423 Billings & Graham by William T. Graham, Winston-Salem, for plaintiff-appellee.

William Z. Wood, Jr., Winston-Salem, for defendant-appellant.

PARKER, Judge.

Defendant having admitted the contract and his failure to pay, plaintiff is entitled to judgment on the pleadings unless the facts alleged in the further answer constitute a valid defense. This depends upon whether the law of New York or of North Carolina applies. In New York the wife's violation of visitation provisions in a separation agreement precludes her from maintaining against the husband an action to recover unpaid installments of support stipulated under such agreement, this result being based on the reasoning that "where monies are to be paid for the support of persons whom the father has a right to see under the terms of the separation agreement, this right to see his children is tied into and is dependent upon his covenant to provide agreed sums of money for their support." Baumann v. Goldstein, Mun.Ct., 201 N.Y.S.2d 575, 578 (1960); accord, Duryea v. Bliven, 122 N.Y. 567, 25 N.E. 908 (1890); Magrill v. Magrill, 16 Misc.2d 896, 184 N.Y.S.2d 516 (1959); Annot., 95 A.L. R.2d 118, § 10, pp. 155-56 (1964). In North Carolina the support provisions of the separation agreement are considered as being independent of the provisions relating to the husband's visitation rights, with the result that the wife's breach of her covenant not to interfere with the husband's visitation rights with the children does not excuse the husband from making the support payments in conformity with the separation agreement. Williford v. Williford, 10 N.C. App. 451, 179 S.E.2d 114 (1971).

A copy of the separation agreement involved in the present case was attached to the complaint. This reveals that the parties were married in New York, owned real property in New York, and on the date of the agreement had addresses at locations within New York. Each party acknowledged execution of the agreement before a notary public in New York. The validity and construction of a contract are to be determined by the law of the state where executed. Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967). This principle, applicable to contracts generally, applies as well to separation agreements. Davis v. Davis, 269 N.C. 120, 152 S.E.2d 306 (1967); Annot., 18 A.L.R.2d 760 (1951). We hold, therefore, that the law of New York is to be applied in determining the construction and effect of the separation agreement now before us and in determining the validity of the defense which defendant has alleged. "With regard to contractual matters, whatever is a good defense on the merits of the *424 case, in the jurisdiction where the contract was made, is a good defense in the place where the action is brought." 16 Am. Jur.2d, Conflict of Laws, § 77, pp. 122-23.

The judgment appealed from is

Reversed.

BRITT and VAUGHN, JJ., concur.