Elmore v. Elmore, 6918SC22
| Decision Date | 02 April 1969 |
| Docket Number | No. 6918SC22,6918SC22 |
| Citation | 4 N.C.App. 192,166 S.E.2d 506 |
| Parties | Arlene C. ELMORE v. Charles T. ELMORE. |
| Court | North Carolina Court of Appeals |
Comer & Harrelson, by Wallace C. Harrelson, Greensboro, for plaintiff appellant.
David M. Clark, Greensboro, for defendant appellee.
The first question raised by this appeal is whether the original appeal was properly dismissed.
Procedurally, this appeal is governed by Roberts v. Stewart and Newton v. Stewart, 3 N.C.App. 120, 164 S.E.2d 58. That case clearly states that an order enlarging the time to serve the case on appeal, made subsequent to the order at the time of appeal, is entered without authority, the appeal having been removed to the Court of Appeals at that point. As in the Roberts case, this appeal is limited to a consideration of the record proper and a determination as to whether error appears on the face of the record.
It should be noted that this problem will be alleviated in the future by the newly enacted Rule 50 of the Court of Appeals, effective 18 February 1969, which provides:
'If it appears that the case on appeal cannot be served within the time provided by statute, rule, or order, the trial judge (or the Chairman of the Industrial Commission or the Chairman of the Utilities Commission as the case may be) may, for good cause and after reasonable notice to the opposing party or counsel, enter an order or successive orders extending the time for service of the case on appeal and countercase or exceptions to the case on appeal, provided this does not alter the provisions of Rule 5 relating to the docketing of the record on appeal.'
The record presents the question whether the trial court had the power to modify the consent judgment entered 13 June 1960. We think the court possessed that power. The terms worked out by the parties were incorporated in the judgment, and the court not only approved the terms but Ordered them performed. This made the agreement a judgment of the court, subject to enforcement by contempt proceedings or to modification upon a showing of changed circumstances. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71; Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218; Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; 2 Lee, N.C. Family Law, § 152, p. 222 (Supplement).
The next question presented by the record is whether plaintiff's demurrer to the motion in the cause should have been sustained for failure to allege, in the motion, a change in circumstances as the basis for modification of the consent judgment.
In his motion, in the matter of custody, the defendant prayed that he and his present wife be granted absolute custody and control of Linda and, as to the other two children, that the court inquire into their custody and control. In the matter of support, the defendant prayed '(t)hat by reason of changed circumstances the order entered * * * be adjusted downward, eliminated, or substantially eliminated.'
It is well established that a change in circumstances must be shown in order to modify an order relating to custody, support or alimony. G.S. § 50--13.7; G.S. § 50--16.9; Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E.2d 469; Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399; Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447; 2 Lee, N.C. Family Law, § 153, pp. 227, 228. However, we find no authority requiring that the change of circumstances be alleged, either specifically or in general terms, in the motion in the cause. While this would appear to be the better procedure, to require it is not necessarily desirable, at least where the party opposing the motion does not contend that he has been surprised or prejudiced and has not requested that the motion be made more definite. The findings of fact adequately support the conclusion of a change in circumstances. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77.
Plaintiff appellant contends that the trial court erred in modifying the consent judgment pertaining to the custody of Linda without a finding of fact of any change of circumstances affecting the welfare of the child. In support of this contention, plaintiff cites Shepherd v. Shepherd, 273 N.C. 71, 159...
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