Elmore v. Elmore

166 S.E.2d 506 (1969)

4 N.C. App. 192

Arlene C. ELMORE v. Charles T. ELMORE.

No. 6918SC22.

Court of Appeals of North Carolina.

April 2, 1969.

*508 Comer & Harrelson, by Wallace C. Harrelson, Greensboro, for plaintiff appellant.

David M. Clark, Greensboro, for defendant appellee.

BRITT, Judge.

The first question raised by this appeal is whether the original appeal was properly dismissed.

Procedurally, this appeal is governed by Roberts v. Stewart and Newton v. Stewart, 3 N.C.App. 120, 164 S.E.2d 58. That case clearly states that an order enlarging the time to serve the case on appeal, made subsequent to the order at the time of appeal, is entered without authority, the appeal having been removed to the Court of Appeals at that point. As in the Roberts case, this appeal is limited to a consideration of the record proper and a determination as to whether error appears on the face of the record.

It should be noted that this problem will be alleviated in the future by the newly enacted Rule 50 of the Court of Appeals, effective 18 February 1969, which provides:

"If it appears that the case on appeal cannot be served within the time provided by statute, rule, or order, the trial judge (or the Chairman of the Industrial Commission or the Chairman of the Utilities Commission as the case may be) may, for good cause and after reasonable notice to the opposing party or counsel, enter an order or successive orders extending the time for service of the case on appeal and countercase or exceptions to the case on appeal, provided this does not alter the provisions of Rule 5 relating to the docketing of the record on appeal."

The record presents the question whether the trial court had the power to modify the consent judgment entered 13 June 1960. We think the court possessed that power. The terms worked out by the parties were incorporated in the judgment, and the court not only approved the terms but ordered them performed. This made the agreement a judgment of the court, subject to enforcement by contempt proceedings or to modification upon a showing of changed circumstances. Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71; Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218; Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240; 2 Lee, N.C. Family Law, § 152, p. 222 (Supplement).

The next question presented by the record is whether plaintiff's demurrer to the motion in the cause should have been sustained for failure to allege, in the motion, a change in circumstances as the basis for modification of the consent judgment.

In his motion, in the matter of custody, the defendant prayed that he and his present wife be granted absolute custody and control of Linda and, as to the other two children, that the court inquire into their custody and control. In the matter of support, the defendant prayed "[t]hat by reason of changed circumstances the order entered * * * be adjusted downward, eliminated, or substantially eliminated."

It is well established that a change in circumstances must be shown in order to modify an order relating to custody, support or alimony. G.S. § 50-13.7; G.S. § 50-16.9; Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E.2d 469; Rayfield v. Rayfield, 242 N.C. 691, 89 S.E.2d 399; Barber v. Barber, 216 N.C. 232, 4 S.E.2d 447; 2 Lee, N.C. Family Law, § 153, pp. 227, 228. However, we find no authority requiring that the change of circumstances be alleged, either specifically or in general terms, in the motion in the cause. While this would appear to be the better procedure, to require it is not necessarily desirable, at least where the party opposing the motion does not contend that he has been surprised or prejudiced and has not requested that the motion be made more definite. The findings of fact adequately support the conclusion of a change in circumstances. *509 Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77.

Plaintiff appellant contends that the trial court erred in modifying the consent judgment pertaining to the custody of Linda without a finding of fact of any change of circumstances affecting the welfare of the child. In support of this contention, plaintiff cites Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357, which holds that there must be a finding of changed circumstances affecting the child in order to alter custody of the child. A careful review of Judge Exum's judgment leads us to conclude that the requirements set forth in Shepherd were complied with. Judge Exum found that in response to a letter from Linda stating her general unhappiness, defendant brought Linda to live in his home during the summer to see how well she would adjust, and found that she was happy in her father's home and wished to remain there. He further found that after plaintiff and defendant were divorced, defendant married Miss Mary Jo Whitted with whom he established a stable home and marriage in Greensboro; that defendant's present wife is employed by the Guilford County Welfare Department as a caseworker in adoptions and prior to that employment was engaged in Christian education work. Furthermore, Judge Exum could also take into consideration the change in Linda's age between 1960 and 1968, from eight to sixteen, and her expressed desire to reside with her father; in James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759, the court said: "The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between parents, but is not controlling." Although the findings do not expressly state that they affect the welfare of the child, certainly it can be inferred that they relate to the welfare of the child, and we think they were sufficient to support the trial judge's conclusion that sufficient change in circumstances had been shown to permit the court to modify the consent judgment.

After this case was docketed in this court, three motions were filed by the defendant. He moved under Rule 20(c) to be allowed to amend his motion in the cause; for the reasons above-stated the amendment is not necessary, therefore, the motion is denied. Defendant also moved in this court that plaintiff's appeal be dismissed or, in the alternative, that the judgment below be affirmed. The motion to dismiss the appeal is overruled. Defendant appellee also moved under Rules 19(h) and 26 that certain costs be taxed against plaintiff appellant; in view of our disposition of this case, it is unnecessary to rule on this motion.

We have considered all motions filed in this court and have considered the record proper to determine if error appears upon its face. We find that no prejudicial error appears, therefore, the 3 June 1968 judgment of Judge Exum is

Affirmed.

MALLARD, C. J., and PARKER, J., concur.