Holthusen v. Holthusen

• Decision Date: 04 March 1986
• Docket Number: No. 8521DC396,8521DC396
• Citation: 339 S.E.2d 823,79 N.C.App. 618
• Parties: Sandra S. HOLTHUSEN (Now Burr) v. Gregory G. HOLTHUSEN.
• Court: North Carolina Court of Appeals

Page 823

339 S.E.2d 823

79 N.C.App. 618

Sandra S. HOLTHUSEN (Now Burr) v. Gregory G. HOLTHUSEN.

No. 8521DC396.

Court of Appeals of North Carolina.

March 4, 1986.

Peebles and Schramm by John J. Schramm, Jr., Winston-Salem, for plaintiff-appellant.

Morrow & Reavis by John F. Morrow, Winston-Salem, for defendant-appellee.

COZORT, Judge.

Plaintiff appeals the district court's denial of her motion in the cause for increase in child support. We affirm.

Plaintiff and defendant separated on 3 May 1980 and entered into a written separation agreement on 12 December 1980. They subsequently divorced on 3 May 1982 and both have remarried. One minor child remains, Ann Holthusen, born 11 November 1969.

The separation agreement places custody of all the children with the plaintiff and the only remaining minor child has been in plaintiff's custody and residing with her since the separation of the parties. The agreement further provides for the support and maintenance of the minor children. The defendant is currently supporting the only remaining minor child in accordance with the terms of the agreement.

On 5 November 1984 plaintiff served upon defendant a motion in the cause for increase in child support. In paragraph VI of the motion plaintiff states:

VI. Since the Separation Agreement was executed there has occurred a substantial change in material circumstances which warrants an increase in child support. The needs of the minor child have substantially increased and the Defendant has the ability and the capacity to meet the increased needs of the child. The Plaintiff's ability to provide support for the child has been substantially decreased.

The amount of child support provided for in the Separation Agreement is inadequate to meet the needs of the minor child and the child support provisions contained in the Separation Agreement do not adequately protect the interests of and provide for the welfare of the minor child. [Emphasis added.]

Defendant denied the material allegations of the motion and the matter came on for hearing before Judge Abner Alexander on 7 January 1985. After the close of plaintiff's evidence defendant moved for a dismissal, which the trial court granted. On 17 January 1985 the trial court entered a written order denying the motion for an increase in child support on the ground that "there has not been a substantial change in the needs of the minor child of the parties...." Plaintiff took no exception to any of the findings of fact or the conclusion of law of the court's order. Rather, plaintiff has only excepted to entry of the order.

Plaintiff first argues that the trial "court err[ed] by compelling [her] to show a substantial change in circumstance subsequent to May 3, 1982 which warranted an increase in child support rather than requiring [her] to show the needs of the minor child at the time of hearing and the defendant's ability to meet those needs." This argument is apparently based upon plaintiff's contention that "[t]he Separation Agreement which was incorporated into the absolute divorce judgment is nothing more than a contract between the parties and is not enforceable by or through the contempt powers of the Court nor is the Agreement modifiable without the consent of the parties."

In her absolute divorce complaint plaintiff prayed that the separation agreement be incorporated in the divorce judgment. In its absolute divorce judgment of 3 May 1982 the court "ordered, adjudged and decreed" that "[t]he terms of the separation agreement and property settlement executed by the parties on December 12, 1980, are hereby incorporated into this judgment by reference as if fully set forth herein, and attached to this judgment as Exhibit A." Plaintiff is correct that since the judgment incorporating the separation agreement in this case was entered prior to the decision in Walters v. Walters, the rule of the Walters case does not apply. 307 N.C. 381, 386, 298 S.E.2d 338, 342 (1983). In Walters our Supreme Court established a rule that

whenever the parties bring their separation agreements before the court for the court's approval, it will no longer be treated as a contract between the parties. All separation agreements approved by the court as judgments of the court will be treated similarly, to-wit, as court ordered judgments. These court ordered separation agreements, as consent judgments, are modifiable, and enforceable by the contempt powers of the court, in the same manner as any other judgment in a domestic relations case.

Id. Under this rule "every court approved separation agreement is considered to be part of a court ordered consent judgment." Id.

While the rule in Walters does not apply in this case, the language used by the court in its absolute divorce judgment, incorporating the separation agreement into the judgment, is sufficient under the law as it existed prior to Walters to evidence the court's intent to make the parties' separation agreement its own determination of their respective rights and obligations. See Levitch v. Levitch, 294 N.C. 437, 241 S.E.2d 506 (1978). Thus, when the court adopted the parties' agreement as to child support as its own determination of the amount of child support to be paid by defendant, this order of support became modifiable in the same manner as any other child support order. Under G.S. 50-13.7(a) "[a]n order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested."

Even if there had been no prior order of support in this case, plaintiff would still have...