Rabon v. Ledbetter, No. 7019SC485

• Decision Date: 16 September 1970
• Docket Number: No. 7019SC485
• Citation: 176 S.E.2d 372,9 N.C.App. 376
• Court: North Carolina Court of Appeals
• Parties: Roy H. RABON, Jr. v. Phyllis L. Rabon LEDBETTER.

Page 372

176 S.E.2d 372

9 N.C.App. 376

Roy H. RABON, Jr. v. Phyllis L. Rabon LEDBETTER.

No. 7019SC485.

Court of Appeals of North Carolina.

Sept. 16, 1970.

Walker, Bell & Ogburn by John N. Ogburn, Jr., Asheboro, for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellant.

PARKER, Judge.

Appellant's first assignment of error is directed to that portion of the order appealed from which relieved plaintiff of the obligation to make full support payments for the children while they were visiting with him in the summertime. At the hearing defendant introduced in evidence the written separation agreement which had been signed by the parties prior to their divorce. In this agreement the plaintiff had agreed to pay $300.00 per month for support of the children, based upon his then current earnings. The agreement also contemplated summer visits of the children with their father, and there was no provision for relieving him of any portion of the $300.00 monthly payments during the time of these visits.

While 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, 146 S.E.2d 73; Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235. No agreement between husband and wife will serve to deprive the courts of their 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, 133 S.E.2d 487. 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.

In this case the order entered by Judge Exum at the time of the divorce of the parents relating to the custody and support of the children, in effect incorporated the provisions of the separation agreement. It is, therefore, apparent that Judge Exum considered these provisions reasonable in the light of the conditions existing at the time he entered the order. No appeal was taken from that order. While orders in custody proceedings are never final, since with the passage of time both the needs of the children and the ability of the parents to supply those needs may change, a court is not warranted in modifying or changing a prior valid order absent a showing of change in conditions. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332. This...