Rabon v. Ledbetter

176 S.E.2d 372 (1970)

9 N.C. App. 376

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

No. 7019SC485.

Court of Appeals of North Carolina.

September 16, 1970.

*375 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 requirement is further pointed out in the language of G.S. § 50-13.7(a): "An order of a court of this State for custody or support, or both, of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." (Emphasis added.)

The order appealed from in the case now before us contains no finding as to any change in circumstances. The only allegation made by plaintiff when he moved for modification of the prior order as to any change in circumstances, was that both parents had remarried. However, there was no allegation as to how this fact related in any way to the custody and support of the children. There was no evidence of any change in the needs of the children, and the only evidence of any change in the ability of the father to make the support payments as directed in the original *376 order was that offered by the defendant, which indicated that the plaintiff father's earnings had increased. In the absence of evidence and finding of any change in circumstances, there was error in the order appealed from insofar as it modified the plaintiff's obligation to continue to make the full $300.00 monthly payments for the support of the children, without reduction during the time of their summer visits to him.

There is no merit in plaintiff's contention that, since he would necessarily be supporting his children while they visited with him, the order appealed from did not really modify the original order. The original order contemplated exactly such visits, yet made no provision for any reduction on the monthly payments. By omitting any such provision, it is possible that the court in making the original order took into account that certain expenses of the children continued at their mother's home even during their absence while visiting their father. However that may be, provision for any reduction in the payments was omitted from the original order, and that order could not thereafter be modified by inserting such provision without a showing and finding of change in circumstances.

There is no merit in appellant's remaining assignments of error which related to the denial of her motion to require plaintiff to reimburse her for travel expenses and attorney's fees and to post bond. These were all matters within the sound discretion of the trial judge and no abuse of discretion has been shown.

The order appealed from insofar as it directs any change in the plaintiff's obligation to continue to make the full $300.00 monthly support payments for the children is reversed; in other respects it is affirmed.

Affirmed in part,

Reversed in part.

MALLARD, C. J., and HEDRICK, J., concur.