Perry v. Perry

• Decision Date: 04 May 1977
• Docket Number: No. 766DC775,766DC775
• Citation: 234 S.E.2d 449,33 N.C.App. 139
• Parties: Jane J. PERRY v. David F. PERRY.
• Court: North Carolina Court of Appeals

Page 449

234 S.E.2d 449

33 N.C.App. 139

Jane J. PERRY v. David F. PERRY.

No. 766DC775.

Court of Appeals of North Carolina.

May 4, 1977.

Carter W. Jones and Ralph G. Willey, III, Ahoskie, for plaintiff-appellee.

Revelle, Burleson & Lee by L. Frank Burleson, Jr., Murfreesboro, for defendant-appellant.

PARKER, Judge.

Defendant contends there was insufficient evidence of a change in the child's circumstances and needs to support the pendente lite order directing him to make child support payments larger than provided in the separation agreement. In particular, he contends that it was necessary that the plaintiff present evidence not only to show the needs of the child at the time of the hearing but also to show what those needs had been at the time the separation agreement was signed, and he contends that in absence of such evidence and findings based thereon showing a change in the needs of the child, the court was not warranted in ordering him to make the increased payments. Defendant's contentions are based on a misconception of the effect of the separation agreement upon the court's power to protect the welfare of the child. What was said by Sharp, J. (now C. J.), speaking for the Court in Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964), is applicable to the present case "When a wife petitions the judge to increase the amount which the Court itself has previously fixed for the support of minor children, she assumes the burden of showing that circumstances have changed between the time of the order and the time of the hearing upon the petition for the increase. In such case, she must show either that the need of the children or the cost of their support has increased, or that the ability of the father to pay has increased if the amount originally fixed was inadequate because of the father's inability to pay more. However, prior to the entry of the order appealed from in this case, the defendant's support payments for the children had been made pursuant to the terms of a deed of separation which was in no way binding on the court insofar as it applied to the children. Therefore, plaintiff's only burden was to show the amount reasonably required for the support of the children at the time of the hearing. The amount which the parties fixed (in their deed of separation) was merely evidence for the judge to consider, along with all the other evidence in the case, in determining a reasonable amount, for support of the children." 261 N.C. at 58-59, 134 S.E.2d at 234.

It was, therefore, not necessary in this case for the plaintiff to present evidence or for the court to make findings as to what the needs of the child had been at the time the separation agreement was signed.

Although the provisions of a valid separation agreement relating to marital and property rights of the parties cannot be ignored or set aside by the court without the consent of the parties, such agreements "are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children." Hinkle v. Hinkle, 266 N.C. 189, 195, 146 S.E.2d 73, 77 (1966). No agreement between the parents will serve to deprive the court of its inherent authority to protect the interests and provide for the welfare of infants. Husband and wife "may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court." Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963). Nevertheless, where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions. Fuchs v. Fuchs, supra.

Here, there was ample evidence of a change in conditions. The mother's serious illness and the resulting drastic reduction in...