Appert v. Appert

• Decision Date: 01 April 1986
• Docket Number: No. 857DC1115,857DC1115
• Citation: 80 N.C.App. 27,341 S.E.2d 342
• Court: North Carolina Court of Appeals
• Parties: , 54 USLW 2599 Jennifer J. APPERT v. Robert A. APPERT.

Page 342

341 S.E.2d 342

80 N.C.App. 27, 54 USLW 2599

Jennifer J. APPERT v. Robert A. APPERT.

No. 857DC1115.

Court of Appeals of North Carolina.

April 1, 1986.

Rose, Jones, Rand & Orcutt, P.A. by Naomi E. Morris, Bobby F. Jones and William R. Rand, Wilson, for plaintiff-appellant.

Connor, Bunn, Rogerson & Woodard, P.A., by James F. Rogerson and Allen G. Thomas, Wilson, for defendant-appellee.

WELLS, Judge.

We must first determine whether plaintiff's appeal is premature. N.C. Gen.Stat. §§ 1-277 (1983) and 7A-27 (1981), taken together, provide that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless the ruling or order affects a substantial right claimed in the proceeding. See Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980); Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). It is not disputed that the order in question is interlocutory; therefore, we need only determine whether it affects a substantial right so as to be immediately appealable. As our Supreme Court has recognized on more than one occasion, "the 'substantial right' test for appealability of interlocutory orders is more easily stated than applied." Waters v. Personnel, Inc., supra; see also Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). "It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Bernick, supra.

The order from which plaintiff has appealed clearly affects the right of the plaintiff to receive support on behalf of the minor children from the defendant on a monthly basis as needed and in the amount which has been found reasonably necessary for the support and maintenance of the children. We conclude that such right is a substantial one and that therefore the order in question is immediately appealable.

The primary issue presented by this appeal is whether a trial judge has authority to condition a minor child's receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent. By ordering that child support paid by defendant be placed in escrow if either of the minor children fail or refuse to abide by the visitation privileges allowed defendant, the court made the children's receipt of the support conditional upon compliance with the visitation ordered. Under the 20 June 1985 order, if the children do not comply with the orders granting defendant visitation privileges by visiting with defendant at the times and places directed by the court, defendant's child support payments will be placed in escrow and thereby withheld from plaintiff and the children until such time as the court might decide to distribute it. The obvious purpose of this arrangement is to force the children and the plaintiff to comply with the orders granting defendant visitation rights. We conclude that trial judges in this State do not have authority to condition the receipt or payment of child support upon compliance with court-ordered visitation as done by the trial judge here and that therefore the order appealed from must be vacated to the extent the trial judge purported to exercise such authority.

It is well established that trial judges are vested with wide discretion in determining matters concerning child custody and support. See, e.g., Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953); Warner v. Latimer, 68 N.C.App. 170, 314 S.E.2d 789 (1984); Evans v. Craddock, 61 N.C.App. 438, 300 S.E.2d 908 (1983). The trial judge's discretion, however, can extend no further than the bounds of the authority vested in the trial judge. In proceedings involving the custody and support of a minor child, the trial judge is authorized to determine the party or parties to whom custody of the child shall be awarded, N.C.Gen.Stat. § 50-13.2 (1984), whether and to what extent a noncustodial person shall be allowed visitation privileges, G.S. § 50-13.2 and N.C.Gen.Stat. § 50-13.5 (1984), the amount of support necessary to meet the reasonable needs of the child, N.C.Gen.Stat. § 50-13.4 (1984), the extent to which the father and mother of the child shall be liable for such support, id., whether attorney's fees shall be awarded to a party, N.C.Gen.Stat. § 50-13.6 (1984), whether an order for child custody or support shall be modified or vacated based on a change in circumstances, N.C. Gen.Stat. § 50-13.7 (1984), and certain other related matters. See generally N.C.Gen.Stat. §§ 50-13.1 through 50-13.9 (1984). In addition, trial judges have authority to enforce orders concerning child custody and support by the methods set forth in G.S. § 50-13.3 (custody orders) and G.S. § 50-13.4 (support orders).

By the order entered 20 June 1985, the trial judge here did not purport to modify or vacate the prior orders concerning the support or custody of the minor children based on a change in circumstances; rather, the judge sought to enforce the prior orders as they related to defendant's visitation rights by conditioning the children's receipt of the support paid by defendant on compliance with the visitation orders. The precise issue presented by this appeal has not previously been decided by the courts of this State. In Laughridge v. Lovejoy, 234 N.C. 663, 68 S.E.2d 403 (1951), however, our Supreme Court stated that the general rule at that time seemed to be that:

[W]here the wife is awarded the custody of the child and the father is given the right to visit it, and the order requires him to make periodic payments for the support of the child, the order for such support will not be construed as being conditioned on the father's right of visitation which he may claim has been denied him.

In so stating, the Court recognized with apparent approval that it was the general rule that the right to receive child support was independent of the noncustodial parent's right to visitation. For this reason, we find the Court's statement significant even though it was not essential to determination of the case.

Defendant cites Mather v. Mather, 70 N.C.App. 106, 318 S.E.2d 548 (1984), as clear authority for the enforcement of visitation rights by the escrow arrangement utilized by the trial judge here. In Mather, the plaintiff mother, who had custody of the parties' minor children, allegedly removed the children surreptitiously from this State and concealed their location thereby willfully disobeying a court order which granted the defendant father visitation rights. Pursuant to a motion made by the defendant, an order was issued directing the plaintiff to appear and show cause why she should not be held in contempt of court. When the plaintiff failed to appear at the show cause hearing, the court issued an order for her arrest and relieved the defendant of his duty to make child support payments until a hearing could be held on the show cause order. The plaintiff appealed. This Court held that the plaintiff's surreptitious removal of the children from North Carolina and the effective proscription of the defendant's right to see his children constituted a sufficient change in circumstances to allow the court to temporarily relieve the defendant of his child support obligation as it did.

Mather is clearly distinguishable from the present case and is not controlling. The present case does not involve a temporary reduction of a parent's child support obligation based on a change in circumstances, nor does it involve the surreptitious removal of minor children from this State in alleged violation of a court order. We believe the holding in Mather is a limited one and find no basis for expanding that holding beyond the narrow circumstances presented in that case.

Currently, other jurisdictions are split on whether child support and visitation rights are interdependent and may be conditioned upon each other. See Annot., 95 A.L.R.2d 118 (1964 and Later Case Service 1983 and Supp. 1985); Note, Making Parents Behave: The Conditioning of Child Support and Visitation Rights, 84 Colum. L.Rev. 1059 (1984). In some jurisdictions it has been held that these rights are interdependent and that courts may reduce, suspend or terminate the noncustodial parent's obligation to pay child support if or while the visitation rights of that parent are being wrongfully denied. See, e.g., Richardson v. Richardson, 122 Mich.App. 531, 332 N.W.2d 524 (1983); Giacopelli v. Giacopelli, 82 A.D.2d 806, 439 N.Y.S.2d 211 (1981). See also Cooper v. Cooper, 59 Ill.App.3d 457, 16 Ill.Dec. 818, 375 N.E.2d 925 (1978); Annot., 95 A.L.R.2d 118, supra; 24 Am.Jur.2d, Divorce and Separation § 1080 (1983). Many of these jurisdictions only allow this if it appears that the welfare of the minor children will not be adversely or seriously affected by the reduction, suspension or termination of the support. See, e.g., Richardson, supra. See also Annot., 95 A.L.R.2d 118, supra at § 7. At least two jurisdictions have enacted statutory provisions authorizing the termination or modification of the noncustodial parent's obligation to pay child support in the event visitation rights are denied. See Ohio Rev.Code Ann. § 3109.05 (Page Supp. 1984); Or.Rev.Stat. § 107.431 (1985).

In the vast majority of cases addressing whether a noncustodial parent is entitled to any relief from the obligation to pay child support because of the denial of the parent's visitation rights, the visitation rights were being denied or frustrated by the actions of the custodial parent. See Annot., 95 A.L.R.2d 118, supra. Those jurisdictions which have allowed trial courts to alter the noncustodial parent's obligation to pay child support because of the denial of the parent's visitation rights or allowed trial courts to otherwise condition the receipt of child support upon compliance with an order granting visitation rights have generally done so on a ground which reflects the fact that...