Kuder v. Schroeder , 110 N.C. App. 355 ( 1993 )

WELLS, Judge.

A motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) tests the sufficiency of a complaint to state a claim upon which relief can be granted. See Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). While the allegations in the complaint must be taken as true, the complaint must nevertheless be sufficient to satisfy the elements of some cognizable claim. Id. See also Harris v. Duke Power Co., 83 N.C. App. 195, 349 S.E.2d 394 (1986), aff’d, 319 N.C. 627, 356 S.E.2d 357 (1987).

Plaintiff’s claims at issue in this appeal are based upon the following essential allegations:

Plaintiff and defendant were married in March of 1978. One child was born to their marriage in June of 1984. After plaintiff and defendant were married, they entered into an oral agreement that plaintiff would forego her career as a veterinarian and would work as a teacher in a local community college to support their family in order that defendant might pursue his undergraduate education at the University of North Carolina in Chapel Hill. Defendant agreed that upon the completion of his undergraduate studies, he would provide the family’s total support, so that plaintiff could then give up her employment and devote her full time to being a wife and mother. Pursuant to this agreement, plaintiff did work and provide the sole support for their family. Plaintiff and defendant subsequently amended or extended their agreement to allow defendant to obtain a master’s degree and a law degree. Following his graduation from law school, defendant was unable to earn sufficient income to fully support the family, but in December of 1989, defendant obtained a position with a law firm which provided him with sufficient income to fully support the family. Three months later, in April of 1990, defendant told plaintiff he no longer loved her and that there was no hope for their marriage; whereupon, the parties separated.

Plaintiff contends that the oral agreement asserted by her in her complaint is a valid and binding contract, entitling her to damages for its breach. Taking plaintiff’s allegations as true, we are sympathetic to her apparent dilemma, and certainly would not condone defendant’s apparent knavish ingratitude, but we do not find support in the law of this State for such a claim and therefore hold that the trial court correctly dismissed plaintiff’s claims.

Under the law of this State, there is a personal duty of each spouse to support the other, a duty arising from the marital relationship, and carrying with it the corollary right to support from the other spouse. See N.C. Baptist Hospitals v. Harris, 319 N.C. 347, 354 S.E.2d 471 (1987). So long as the coveture endures, this duty of support may not be abrogated or modified by the agreement of the parties to a marriage. See Ritchie v. White, 225 N.C. 450, 35 S.E.2d 414 (1945). See also generally Lee, N.C. Family Law, §§ 16Á and 183 (4th ed. 1980)

Plaintiff’s reliance on our decision in Suggs v. Norris, 88 N.C. App. 539, 364 S.E.2d 159, cert. denied, 322 N.C. 486, 370 S.E.2d 236 (1988) is misplaced. In that case, we sanctioned a claim for remuneration for services performed in a business (farming) enterprise by a person who was cohabiting with, but not married to, a deceased cohabitor. The facts and ruling in that case are in no sense relevant to the facts and issues presented in the case now before us.

For the reasons stated, the trial court’s order must be and is

Affirmed.

Judge GREENE dissents in a separate opinion. Judge WYNN concurs in a separate opinion.