Voss v. Summerfield

336 S.E.2d 144 (1985)

Janet Roush (Summerfield) VOSS v. Gary Allen SUMMERFIELD.

No. 8526DC344.

Court of Appeals of North Carolina.

November 19, 1985.

*145 Thomas R. Cannon, P.A. by Thomas R. Cannon and Nicki Levine, Charlotte, for plaintiff.

Welling & Jordan by G. Miller Jordan, Charlotte, for defendant.

WELLS, Judge.

In his first assignment of error, defendant contends that the trial judge erred in concluding that defendant waived the right to receive child support from the plaintiff. We agree.

[N]o agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. They 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 (1963). The conclusion of law that defendant had waived his right to child support is therefore in error. It is stipulated by the parties, and the trial court's judgment shows, that the court ruled on defendant's motion to modify the consent order on the basis of the separation agreement's effect on defendant's rights. The motion was, as a result, denied without consideration of defendant's evidence on the changed circumstances of the parties. *146 This was error and the judgment must be reversed and the cause remanded for a hearing on the evidence and findings and conclusions arising on that evidence. See Ebron v. Ebron, 40 N.C.App. 270, 252 S.E.2d 235 (1979).

It is important to note that on remand the defendant, as movant, will have the burden of showing a "substantial change of circumstances affecting the welfare of the child" before the order may be modified. Id. Recognizably, defendant's task is rendered more difficult by the existence of the separation agreement. A valid separation agreement cannot be ignored or set aside by the court without the consent of the parties. Winborne v. Winborne, 41 N.C.App. 756, 255 S.E.2d 640, disc. rev. denied, 298 N.C. 305, 259 S.E.2d 918 (1979). Deference due this agreement gives rise to the presumption, in the absence of evidence to the contrary, that the amount agreed upon is just and reasonable. See Id.

Reversed and remanded.

ARNOLD and MARTIN, JJ., concur.