Tilley v. Tilley

227 S.E.2d 640 (1976)

30 N.C. App. 581

Mary Good TILLEY v. Jack P. TILLEY.

No. 7617DC221.

Court of Appeals of North Carolina.

September 1, 1976.

*641 Cama C. Merritt, Mount Airy, for plaintiff-appellee.

William G. Reid, Pilot Mountain, for defendant-appellant.

HEDRICK, Judge.

The only exceptions in the record are to the judgment and to the court's denial of the defendant's motion to set aside the judgment appealed from. These exceptions present the question of whether the facts found or admitted support the judgment and whether the judgment is in proper form.

Defendant contends the court erred in ordering him to pay $2,050.00 arrearages representing $100.00 per month from the date his son Bradley became 18 years old and that defendant was authorized to reduce the payments unilaterally by $100.00 per month when Bradley reached his majority.

"While a parent is under a legal as well as a moral obligation to support his minor children, that obligation normally terminates when the child reaches his majority and ceases to be dependent." Ford v. *642 National Bank, 249 N.C. 141, 143, 105 S.E.2d 421, 423 (1958).

In the present case the court concluded that "the defendant . . . [was] in arrears in support payments in the amount of $2,050.00." In the 8 August 1972 order, the court provided for a reduction in support when Lynn Tilley became 18 years of age. Had it desired to also provide for a reduction when Bradley became 18, it could easily have done so. The only logical interpretation of the August, 1972, order is that defendant was to continue to make support payments at $200.00 per month until there were no longer any minor children or until he made a showing of a change in circumstances justifying a modification of the order. See Rabon v. Ledbetter, 9 N.C.App. 376, 176 S.E.2d 372 (1970). The August, 1972, order was incorporated into the findings of fact in the order appealed from. It supports the conclusion that defendant was in arrears $2,050.00. This argument is without merit.

Citing Jarrell v. Jarrell, 241 N.C. 73, 84 S.E.2d 328 (1954), defendant argues in the alternative that even if the August, 1972, order did not provide for a reduction in support when Bradley became 18, the fact of Bradley's reaching the age of majority was such a change in circumstances as would justify a reduction in the amount of support. Defendant argues that the court should have modified the August, 1972, order and retroactively reduced the amount of support he was required to pay to only $100.00 per month from the date Bradley became 18.

The case cited by defendant is clearly distinguishable on its facts. Whether the trial court has the authority to retroactively reduce payments provided for child support by a prior order of the court, 2 Lee, North Carolina Family Law, § 153, pp. 232-33, is not before us, since the court in the instant case made no retroactive change in the 1972 order. As pointed out above, the facts found by the trial judge clearly support the order entered. The proper procedure for the defendant to have followed when Bradley reached majority would have been for the defendant to have applied to the trial court for relief. G.S. 50-13.7. We hold the defendant had no authority to unilaterally attempt his own modification of the 1972 order.

We note that plaintiff in her motion in the cause sought counsel fees. In the order appealed from by the defendant, the court found as a fact that plaintiff had the means "of bringing this action" and did not enter an order for counsel fees. Plaintiff did not appeal, but in her brief, citing G.S. 50-13.6, plaintiff prays that this court order defendant to pay attorney's fees incurred by counsel in representing plaintiff on appeal. General Statute 50-13.6 authorizes the trial court, in a proper case, after making appropriate findings of fact, to order the payment of reasonable counsel fees. Neither the statute cited by plaintiff nor any other statute of which we are aware authorizes this court to make an award of attorney's fees. The judgment appealed from is

Affirmed.

BRITT and MARTIN, JJ., concur.