Rice v. Rice

• Decision Date: 03 June 1986
• Docket Number: No. 8525DC1262,8525DC1262
• Citation: 344 S.E.2d 41,81 N.C.App. 247
• Court: North Carolina Court of Appeals
• Parties: Sandra Binder RICE v. James Patrick RICE.

Page 41

344 S.E.2d 41

81 N.C.App. 247

Sandra Binder RICE v. James Patrick RICE.

No. 8525DC1262.

Court of Appeals of North Carolina.

June 3, 1986.

Waddell, Mullinax & Childs by Lewis E. Waddell, Jr., Newton, for defendant-appellant.

Randy D. Duncan, Hickory, for plaintiff-appellee.

JOHNSON, Judge.

Defendant first argues that the trial court's order does not contain sufficient findings of fact and conclusions of law to warrant a sixty percent (60%) increase of child support payment over the amount agreed upon in the parties' separation agreement. We agree.

Our discussion of defendant's argument begins with a rejection of defendant's contention that plaintiff must show a substantial change of conditions from the time the separation agreement was entered into. See generally Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449, disc. rev. denied, 292 N.C. 730, 235 S.E.2d 784 (1977). This Court in Perry, supra, quoting Fuchs v Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963), ruled as follows:

No [separation] 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 withdraw children of the marriage from the protective custody of the court.'

Perry, supra, 33 N.C.App. at 142-43, 234 S.E.2d at 452. Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964), and Perry, supra, reject defendant's suggestion that the court must have made findings that there was a substantial change of circumstances from the time the parties entered into their separation agreement.

Defendant contends that the trial court abused its discretion by failing to make the requisite findings of fact and conclusions of law in the court's order increasing defendant's child support payments from the amount the parties agreed to in their separation agreement. The statutory authority for an action for support of a minor child is G.S. 50-13.4, which states in pertinent part the following:

(b) In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child, and any other person, agency organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child, as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support.

(c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and home maker contributions of each party and other facts of the particular case.

G.S. 50-13.4. The trial court has great discretion in establishing the amount of payments toward the support of minor children. Plott v. Plott, 65 N.C.App. 657, 310 S.E.2d 51 (1983), modified, 313 N.C. 63, 326 S.E.2d 863 (1985).

The parties' separation agreement required defendant to pay not less than $500.00 per month as a total of child support for the two children. The trial court ordered that defendant shall pay $800.00 per month as support for his minor son Eric. This represents a $300.00 increase in support payments above the $500.00 monthly payments, which was for the support of two minor children. Since the parties' daughter is no longer a minor, defendant was not required to make child support payments for her benefit. The following conclusion of law engendered the court's order requiring defendant to pay $800.00 for the support of his minor son:

3. A material and substantial change affecting the welfare of the minor son, Eric, has taken place with regard to his support, particularly the contribution toward that support which should be made by his father, defendant based upon:

(a) Eric's increased age and greater needs;

(b) Increases in costs of items needed for his support;

(c) The loss by plaintiff of $250 per month formerly received from defendant for Glenda [the parties' daughter]

(d) The added drain on plaintiff's resources caused by her trying to support a daughter in college; and

(e) Defendant's increased earnings and property.

The finding by the court that plaintiff has lost $250.00 per month formerly received from defendant for Glenda is an improper consideration. Glenda is no longer a minor and her personal expenses should not serve as a basis for more than tripling the $250.00 child support payments for Eric, as agreed upon in the separation agreement, to $800.00. Moreover, we note that defendant had by the separation agreement manifested his intent to assist his daughter with her college expenses. Glenda became eighteen years of age on 31 October 1982. The court found as fact that the monthly expenses of Eric were $583.00. There are no specific findings with respect to what basis exists for the difference between the $583.00 monthly expenses of Eric and the $800.00 that the court ordered defendant to pay in child support payments for Eric. The court did find as fact that in the fall of 1983 defendant gave Glenda twelve undated checks, each in the amount of $250.00, and that defendant had withdrawn his financial support of his daughter because of the then pending litigation. It appears that this finding of fact, in part, engendered the court's conclusion of law that defendant had not breached the parties' separation agreement. Thus, the court concluded as a matter of law that plaintiff had lost the $250.00 per month payments contributed by defendant for the support of the emancipated child, Glenda; however, the findings of fact indicate that Glenda received and will continue to receive financial assistance from defendant. We hold that the findings of fact in the instant case do not support the court's conclusions of law that defendant pay $800.00 per month for the support of Eric.

Defendant next contends that the trial court erred in its order upholding the validity of the parties' separation agreement while at the same time...