Nolan v. Nolan

202 S.E.2d 344 (1974)

20 N.C. App. 550

Robert Earl NOLAN v. Marie Claude Biet NOLAN.

No. 7421DC45.

Court of Appeals of North Carolina.

February 6, 1974.

Certiorari Denied April 2, 1974.

*346 Hudson, Petree, Stockton, Stockton & Robinson by W. F. Maready, James H. Kelly, Jr., W. A. Holland, Jr., Winston-Salem, for plaintiff-appellant.

Randolph & Randolph by Clyde C. Randolph, Jr., Winston-Salem, for defendant-appellee.

Certiorari Denied by Supreme Court April 2, 1974.

HEDRICK, Judge.

In his initial assignment of error the plaintiff contends that the trial court erred in its determination that the two children of plaintiff who were over the age of eighteen were entitled to increased child support payments. The fact that the parties have entered into a separation agreement providing for support payments does not deprive the courts of their inherent as well as statutory authority to protect the interests and provide for the welfare of minors. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963); Story v. Story, 221 N.C. 114, 19 S.E.2d 136 (1942). See also, Lee, North Carolina Family Law, Vol. 2, § 152, pp. 224-5 (1963). Since the enactment of G.S. 48A in 1971, the decisions of this Court and the Supreme Court have concluded that the father's legal obligation to support his child ceases when the child reaches the age of eighteen, Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972); Taylor v. Taylor, 17 N.C.App. 720, 195 S.E.2d 355 (1973), provided that it is not shown that the child is insolvent, unmarried, and physically or mentally incapable of earning a livelihood. Crouch v. Crouch, 14 N.C.App. 49, 187 S.E.2d 348 (1972), cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972); Choate v. Choate, 15 N. C.App. 89, 189 S.E.2d 647 (1972); G.S. § 50-13.8. In the case at hand, two of the children involved, being nineteen and twenty-one years of age respectively, have passed their minority, and this fact coupled with the failure to show that the children are insolvent, unmarried, and physically or mentally incapable of earning a livelihood terminates the inherent authority of the courts to consider the children as wards of the court. Thus, the trial judge exceeded his authority as to these two children and the order entered requiring increased payments for them must be reversed.

Having determined that the courts have the inherent authority to provide for the welfare of minor children, we must next investigate the correctness of that portion of the trial court's order which required an increase in the amount of support payments to the minor child Robert Eric Nolan (Eric). Plaintiff contends that such increase was incorrectly ordered. The order awarding increased child support payments must be examined in light of the following statement of Denny, C. J., in Fuchs v. Fuchs, supra, 260 N.C. at p. 639, 133 S.E.2d at p. 491.

"[W]here parties to a separation agreement agree upon the amount for the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable. We further hold that the court upon motion for an increase in such allowance, is not warranted in ordering an increase in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on the ground that the father's income has increased; therefore, he is able to pay a larger amount."

The only evidence presented in this case relative to "a change in conditions *347 or need[s] as to the minor child Eric indicates that the needs of this child have decreased. At the time the parties signed the separation agreement, Eric was enrolled in a private school; and the cost of his tuition, room, and board was $242.00 per month. Presently this child attends public school in Winston-Salem and his only expenses introduced into evidence were $30.00 for lunches at school and $20.00 for drum lessons. This evidence does not support the trial court's finding of fact that there had been a change of conditions as to the minor child Eric and the absence of such a finding of fact necessitates that the increased support ordered be reversed because in fixing the amount of child support payments the court must consider both the earnings of the father and the change of conditions and needs of the children. Fuchs v. Fuchs, supra; Calhoun v. Calhoun, 7 N.C.App. 509, 172 S.E.2d 894 (1970). Although the parties do not dispute the finding of fact that the father's income has increased, this factor alone is not sufficient to order an increase in child support payments. Fuchs v. Fuchs, supra.

Finally, plaintiff contends that the trial court erred in awarding attorney's fees of $1,000.00 to the defendant's counsel. We agree with this contention. G.S. § 50-13.6 in pertinent part provides:

"In an action or proceeding for the custody or support, or both, of a minor child . . . the court may in its discretion order payment of reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit."

The trial court having failed to make a finding of fact with respect to the wife's ability to defray the expense of this suit as required by G.S. § 50-13.6, we hold that the court abused its discretion in ordering plaintiff to pay attorney's fees. Moreover, if the court had made a finding of fact that the wife was unable to defray the expense of this suit, this finding would not have been supported by the uncontroverted evidence as such evidence revealed that the wife receives $1,825.00 per month for alimony and child support. Furthermore, the trial court's award of attorney's fees was improper for reasons already discussed in this opinion, viz. the lack of authority of the trial court to enter an order as to the two children over eighteen and the failure of the trial court to make adequate findings of fact to support the order entered as to increased support payments for the minor child. Taylor v. Taylor, supra. Therefore, under the circumstances of this case, it was error for the court to order the plaintiff to pay $1,000.00 to defendant's counsel.

For the reasons stated those portions of the order dated 16 July 1973 requiring plaintiff to pay defendant increased child support for Patrick, Michelle, and Eric and an attorney's fee of $1,000.00 are

Reversed.

CAMPBELL and BALEY, JJ., concur.