Crosby v. Crosby, 460
| Decision Date | 13 December 1967 |
| Docket Number | No. 460,460 |
| Citation | 272 N.C. 235,158 S.E.2d 77 |
| Parties | Andrew CROSBY v. Fanny W. CROSBY. |
| Court | North Carolina Supreme Court |
Hayes & Hayes and W. Warren Sparrow, Winston-Salem, for plaintiff.
Randolph & Drum, Winston-Salem, for defendant.
The question presented for decision is: Did the court sufficiently find facts, based on competent evidence of change of circumstances since entry of order for child support, to justify vacating said order?
When a divorce action is instituted, the court acquires jurisdiction over the children born to the marriage and may hear and determine questions as to the custody and maintenance of the children, both before and after final decree of divorce. In the exercise of this jurisdiction the welfare of the child is of paramount consideration. Story v. Story, 221 N.C. 114, 19 S.E.2d 136. G.S. § 50--13.
It is generally recognized that decrees entered by our courts in child custody and support matters are impermanent in character and are Res judicata of the issue Only so long as the facts and circumstances remain the same as when the decree was rendered. The decree is subject to alteration upon a change of circumstances affecting the welfare of the child. Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153.
In cases of child support the father's duty does not end with the furnishing of bare necessities when he is able to offer more, Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227, nor should the court order an increase in payments absent evidence of changed conditions of the need or such increase. Admittedly, the welfare of the child is the 'polar star' in the matters of custody and maintenance, yet common sense and common justice dictate that the ultimate object in such matters is to secure support commensurate with the needs of the child and the ability of the father to meet the need. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487.
When plaintiff moved that the original order be vacated and either modified or eliminated, he assumed the burden of showing that circumstances had changed between the time of the order and the time of the hearing upon his motion. Williams v. Williams, supra.
In the instant case plaintiff's motion to vacate and modify or eliminate the order entered on 1 March 1966 is supported only by the motion itself and a statement made by plaintiff's counsel. Plaintiff's motion states that the child is capable of being self-supporting, and that he has offered to get her employment; that plaintiff has worked out a plan to pay her college tuition; that plaintiff had two jobs when the original order was entered, but is no longer able to continue with two jobs; that he is now supporting four other children. The statement made by plaintiff's counsel was that at the time of the hearing on plaintiff's motion his weekly take-home pay was $88.17. The original order found that his weekly take-home pay was approximately $75.00.
It is apparent that plaintiff's conclusion that the child is self-supporting and his allegation that he was worked out a plan to pay her college tuition do not show material change of circumstances affecting the child's welfare. The statement made by plaintiff's counsel shows a circumstance unfavorable to plaintiff's contention, since it shows an increase in his ability to pay since the entry of the original order.
The most provocative of plaintiff's contentions is that he now supports four other children. He was married to defendant in August 1941, and the youngest child born to that marriage was 19 years old at the time of the hearing on his motion. Plaintiff obtained his divorce from defendant on 3 January 1966, and the record sheds no light on how plaintiff acquired four children to whom he owes the duty of support since January...
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...to an appellate court's determination of whether the judge's order is sufficiently supported by competent evidence. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). If the record discloses sufficient evidence to support the findings, it is not this Court's task to determine de novo the......
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Stanback v. Stanback
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