Zande v. Zande

164 S.E.2d 523 (1968)

3 N.C. App. 149

Juanita F. ZANDE v. Albert ZANDE.

No. 6828SC401.

Court of Appeals of North Carolina.

December 11, 1968.

*526 Williams, Williams & Morris, by John Golding, Asheville, for plaintiff appellee.

Sanford W. Brown, Asheville, for defendant appellant.

MALLARD, Chief Judge.

Appellant contends that the "Final Judgment" entered with the consent of the parties and their respective counsel in this cause on 14 January 1966, terminated the defendant's liability to further support the plaintiff and to pay her counsel fees. The question of support for the plaintiff is not presented by this record. The judgment appealed from makes no provision for the support of the plaintiff.

In Becker v. Becker, 273 N.C. 65, 159 S.E.2d 569, it is said, "Attorneys fees for services rendered subsequent to plaintiff's divorce may be allowed only for services rendered on behalf of the children." (emphasis added) The parties hereto were divorced 31 January 1966 which was before this motion was filed. It was also set out in the judgment dated 14 January 1966 that defendant would not be liable for further counsel fees for plaintiff's attorney. There is no finding of fact in the record herein which can serve as a basis for ordering payment of attorney fees. It was error for the judge to order defendant to pay plaintiff's attorney for "services rendered on behalf of the plaintiff and the three minor children since October 13, 1967." It is, however, proper for the trial judge, in the exercise of discretion, to order a defendant, in proper cases upon proper findings, to pay attorney fees for services rendered on behalf of minor children.

Defendant also contends and argues that evidence of plaintiff's income, the cost of plaintiff's living expenses, including the cost of upkeep of her house and automobile and some other expenses, were improperly admitted over objection. Appellant in his brief appears to have used "assignments of error" when he obviously intended to refer to "exceptions." It has, therefore, been difficult to determine in some instances to what appellant refers. The evidence tended to show that the children were living in the home of plaintiff and some of the evidence, admitted over objection, was competent *527 to show the cost of the living expenses of the children. Although some of the evidence may have been incompetent, we are of the opinion that such did not influence the judge's findings and was therefore not prejudicial to defendant. There is a rebuttable presumption in a trial before a judge, sitting without a jury, that if incompetent evidence was admitted, it was disregarded and did not influence the judge's findings. Stansbury, N.C. Evidence 2d, § 4a.

Plaintiff contends that the trial court committed error in that it reviewed and revised the judgment entered by consent of the parties on 14 January 1966 by another superior court judge. There is no merit to this contention. Any judgment entered by consent or otherwise, determining the custody and maintenance of minor children, may be modified by the court at any time changed conditions make a modification right and proper. Story v. Story, 221 N.C. 114, 19 S.E.2d 136; Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332; Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; 2 Lee, North Carolina Family Law, § 152; Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721.

Appellant contends that there was insufficient competent evidence of a change of condition in the support needs of the three minor children to support the findings of fact set out in the judgment of 6 June 1968. We think there was ample evidence to show a change of condition in the support needs of the three minor children and to support the finding of fact that the three children require $775.00 per month, which sum the defendant is financially capable of making and paying. However, as to paragraph eleven of the judgment, there is no competent evidence to support the finding of fact therein that "said daughter desires to attend college during the summer months of 1968 and graduate from her two year executive secretarial course at the close of March of 1969," and this portion of the findings of fact is stricken.

The order also provides that the $775.00 payments shall be reduced to $550.00 per month after Angela C. Zande is graduated from King's Business College and to $400.00 per month after Michael L. Zande is graduated from the School of the Arts, becomes twenty-one years of age, or otherwise becomes emancipated under the law. This does not take into consideration the amount found to be required for the support of Angela, nor does it take into account her age. Neither does this take into consideration the finding of fact in paragraph eleven that $260.00 per month of the $775.00 was required for Angela which, if no longer required, would leave only $515.00 of the $775.00 instead of the $550.00. Also not considered in the order reducing the payments were the amounts found to be required for the support of Michael. The effect of this order is to increase automatically the awards for the other two children when and if Angela is graduated from business college and to increase automatically the amount to be paid for Anthony when Michael becomes twenty-one years of age. This also assumes that Angela will be graduated from King's Business College at some time in the future.

The order reducing the payments in the future after Angela is graduated and after Michael becomes twenty-one years of age or is emancipated is not supported by the evidence or the findings of fact.

Appellant also asserts that plaintiff should account to him for the sums paid under the consent judgment of 14 January 1966. This contention is without merit. In 3 Lee, North Carolina Family Law, § 229 (1968 Supp.), citing Tyndall v. Tyndall, 270 N.C. 106, 153 S.E.2d 819, it is said, "If a mother fails to use the money awarded to her for the support of a minor child, a cause of action for the benefit of the child, prosecuted on his or her behalf, arises; the father may not recover the money for his own benefit." Under the judgment of 14 January 1966, the payments *528 for support were to be paid by the defendant to the clerk of court. The clerk of court was required to disburse the sums so paid to plaintiff. The defendant is not entitled to an accounting from plaintiff. See also Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113.

Appellant's last contention is that the father, not the child, may select the school for the child to attend in obtaining an education beyond high school when such education will be at the father's expense. Under ordinary circumstances, we think appellant's contention is correct. But here, a court of competent jurisdiction has awarded the custody to the mother. In 39 Am.Jur., Parent and Child, § 49, there appears the following:

"At common law, however, while the duty rested upon the parent to educate his child, the law would not attempt to force him to discharge this duty, and the child, at the will of the parent, could be allowed to grow up in ignorance, the law providing no remedy in such a situation. * * In the absence of a statute changing the common-law rule, control of the child's education is the right especially and primarily of the father. * * * Where the custody of the child has been taken from the father by a court of competent jurisdiction and awarded to the mother, the view has been taken that the mother should determine what education the child should have, and that the father, although liable for the expense involved, should be required to abide by her decision unless it is reached for a vindictive purpose, lacks adequate support in the facts, or is for some other reason clearly wrong. Other authorities, however, appear to consider that so long as the father is sought to be charged with the expense of the education he should have some voice in the type of education the child should have."

"In providing for the support of minor children the ability of the father to pay, as well as the needs of the children, must be taken into consideration by the court." Martin v. Martin, 263 N.C. 86, 138 S.E.2d 801.

In Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227, the court said:

"Whatever may have been the rule at common law, a father's duty of support today does not end with the furnishing of mere necessities if he is able to afford more. In addition to the actual needs of the child, a father has a legal duty to give his children those advantages which are reasonable considering his financial condition and his position in society."

We have not found any decision of our Supreme Court deciding the precise question of who selects the school for a minor child to attend in obtaining an education beyond that provided by the public school system of the state. We are of the opinion that the father, unless his parental authority has been taken away by the court, is the one to decide the extent of and the place of the education of his child beyond that which is provided by the public school system. However, where the custody of the child has been taken away from the father by the court, we are of the opinion that the custodian, subject to the approval of the court in cases where the father is required by the court to pay therefor, is the one to make such decision. Esteb v. Esteb, 138 Wash. 174, 244 P. 264; 47 A.L.R. 119; 56 A.L.R.2d 1207; Jenks v. Jenks, Mo. App., 385 S.W.2d 370; 24 Am.Jur.2d, Divorce and Separation, § 796, p. 903.

The following portion of the order of 6 June 1968 is also ordered stricken:

"* * * and continuing thereafter until such time as Angela C. Zande graduates from the King's Business College (Executive Secretarial Course) at which time said payments shall be reduced to $550 per month which payment shall continue until such time as Michael L. Zande graduates from the School of the Arts, becomes 21 years of age, or otherwise becomes emancipated under law. *529 That thereafter said support payments shall be decreased to the sum of $400 per month, to be used for the support, maintenance and education of Anthony L. Zande, until said child graduates from college, reaches the age of 21 years, or otherwise becomes emancipated under law. IT IS FURTHER ORDERED that the defendant shall pay the plaintiff's attorney the sum of $500.00, in compensation for the services rendered on behalf of the plaintiff and the three minor children since October 13, 1967."

The order of Judge McLean of 6 June 1968, as modified herein, is affirmed.

Modified and affirmed.

CAMPBELL and MORRIS, JJ., concur.