Coggins v. Coggins, 457
| Decision Date | 19 December 1963 |
| Docket Number | No. 457,457 |
| Citation | 133 S.E.2d 700,260 N.C. 765 |
| Parties | Maude Lee Adams COGGINS v. June F. COGGINS, Jr. |
| Court | North Carolina Supreme Court |
Jones & Jones, Rockingham, for plaintiff.
Morgan & Williams, Lillington, for defendant.
Defendant appeals from an order fixing custody and making an allowance for the support of a minor child.
Plaintiff instituted an action against defendant for absolute divorce and alleged that a daughter, Maria Coggins, was born of the union. Defendant answered.
Thereafter, plaintiff filed a motion 'for an order of support and custody' of the child. The motion was heard upon the pleadings and affidavits of the parties.
The court found facts, which are paraphrased as follows:
Plaintiff and defendant were married 3 October 1958 and separated pursuant to a deed of separation of 15 November 1960. One child, now 3 1/2 years old, was born of the union. Since the separation plaintiff has lived in a house owned by the parties as tenants by the entireties; there is a mortgage of $8500 against this property. Plaintiff is employed and earns $83 per week, take-home pay; defendant is employed as a railroad depot agent and earns $300 per month, after tax and retirement withholdings. Since the separation defendant has paid the $83 monthly installments on the mortgage and $100 per month to plaintiff for Maria's support.
The court awarded the custody of the child to plaintiff, subject to the right of defendant to have her one week-end each month. It was ordered that defendant make the $83 monthly payments on the mortgage, pay one-half of the taxes and insurance, and pay plaintiff $80 per month 'towards the support of his minor daughter.'
Defendant appeals on the ground that the required payments are excessive and the order therefor an abuse of discretion on the part of the court.
'After the filing of a complaint in any action for divorce, whether from the bonds of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge * * * to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper * * *.' G.S. § 50-13; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133. 'In proceedings of this nature the amount to be allowed * * * for the support of the children of the marriage is within the sound discretion of the trial judge and will not be disturbed except where such discretion has been grossly abused.' Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555.
Ordinarily, in entering a judgment for the support of a minor child, the ability to pay as well as the needs of such child will be taken into consideration. Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721. Though the court below undertook to find the facts, it made no finding as to the needs of the child and found only inferentially the ability of defendant to pay.
There are matters set out in the affidavits with respect to which no facts were found. Plaintiff's affidavit: Plaintiff has two children of a former marriage, a daughter, age 15, and a son, age 11; plaintiff and her children, including Maria,...
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