Cox v. Cox

260 S.E.2d 812 (1979)

44 N.C. App. 339

Carolyn R. COX v. James W. COX.

No. 7910DC518.

Court of Appeals of North Carolina.

December 18, 1979.

*813 Brenton D. Adams, Raleigh, for plaintiff-appellant.

Wake County Atty. Michael R. Ferrell, Raleigh, for appellee (Wake County Child Support Enforcement Agency).

HARRY C. MARTIN, Judge.

Under the law of North Carolina, when the people, through the state, provide support for minor children by AFDC, there arises a debt owed to the state by any parent obligated to support such minor children. N.C.Gen.Stat. 110-135. The county attorney shall represent the state in proceedings to collect such debts. N.C.Gen. Stat. 110-135. The recipient of such public assistance for minor children shall be deemed to have made an assignment to the state of the right to any child support, up to the amount of public assistance received. The state is subrogated to the right of the person having custody of such children to recover any payments ordered by the courts of this state. N.C.Gen.Stat. 110-137.

Appellant contends the state in this case is not entitled to reimbursement of the funds paid for the support of her minor children. We do not agree. Appellant's argument that Wake County could not make the motion for reimbursement because it was not a party to the action is without merit. The provisions of N.C.G.S. 50-13.7(a) allow "either party or anyone interested" to make a motion in the cause to modify an order for support. Obviously, if the legislature had intended that only parties could make such motions, it would have used "any party" rather than the language employed. By virtue of the assignment pursuant to N.C.G.S. 110-137, the state, or the county on its behalf, has an interest in the order for the support of plaintiff's children. Upon the making of such motion, the movant could be required to become a party to the action if deemed appropriate by the court. N.C.Gen.Stat. 1A-1, Rule 25(d). Plaintiff made no motion to join Wake County as a party. Under N.C.G.S. 110-135 the county attorney had a duty to represent the state in this proceeding. We hold the motion for modification of the support order was properly made by Wake County.

Clearly, the mortgage payments required to be made by defendant constituted child support for the minor children of plaintiff and defendant. The children lived in the house subject to the mortgage lien; as each child attained the age of eighteen years, the required payments were reduced by one-third; when the youngest child became eighteen years old, the payments completely stopped.

*814 Being child support payments, the weekly mortgage payments were assigned by operation of law, as well as by the written assignment to Wake County executed by plaintiff, to the state, and the court properly modified the order for support by directing that the weekly payments of $50 be paid by defendant to the Clerk of Superior Court of Wake County, to be transmitted by the clerk to the North Carolina Department of Human Resources.

The fact that plaintiff began receiving public assistance on behalf of the children, and executed the assignment on 3 February 1976, is sufficient change of circumstances to justify the modification of the previous order. The usual questions concerning modification of a support order are not present here. Wake County is entitled to the relief sought as a matter of law. While it does not appear of record, presumably the children receive more benefit from the AFDC payments than from the defendant's weekly mortgage payments of $50.

The order of the district court is

Affirmed.

VAUGHN and WEBB, JJ., concur.