Bishop v. Bishop

96 S.E.2d 721 (1957)

245 N.C. 573

Faye G. BISHOP v. Frantz S. BISHOP.

No. 17.

Supreme Court of North Carolina.

February 27, 1957.

*723 J. Y. Jordan, Jr., Williams & Williams, Asheville, for plaintiff.

Redden & Redden, Hendersonville, Thomas R. Eller, Jr., Brevard, for defendant.

DENNY, Justice.

The defendant did not request the court to find the facts, or except to the findings made by it. Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884. In fact, no exception was entered at the hearing below. However, the appeal itself constitutes an exception to the judgment. Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Gibson v. Central Mfrs'. Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320. Therefore, the only question presented *724 is whether the facts found are sufficient to support the judgment. Byrd v. Thompson, 243 N.C. 271, 90 S.E.2d 394; Scarboro v. Pilot Life Insurance Co., 242 N.C. 444, 88 S.E.2d 133; Muilenburg v. Blevins, 242 N.C. 271, 87 S.E.2d 493; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759. Other questions argued in the appellant's brief are not presented for decision.

In the case of Story v. Story, 221 N.C. 114, 19 S.E.2d 136, 137, the action was for divorce. In September 1938, before the cause was heard on its merits, the court entered a consent order requiring the plaintiff, the father of the child of the marriage, to pay into the office of the Clerk of the Superior Court $25 per month for the support of the defendant and the child and awarding the custody of the child to the defendant. During the same term of court, judgment of divorce absolute was entered. In August 1941 the defendant made a motion in the cause for an increased allowance for the support of the infant child. An order was so entered. The plaintiff appealed therefrom on the ground that the original order was by consent and not subject to modification by the court. On appeal, this Court said: "No agreement or contract between husband and wife will serve to deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by separate agreement or by a consent judgment; In re Albertson, 205 N.C. 742, 172 S.E. 411; Morris v. Patterson, 180 N.C. 484, 105 S.E. 25; Webster v. Webster, 213 N.C. 135, 195 S.E. 362; but they cannot thus withdraw children of the marriage from the protective custody of the court. * * * In such case the welfare of the child is the paramount consideration to which even parental love must yield, and the court will not suffer its authority in this regard to be either withdrawn or curtailed by any act of the parties.

"Hence, even if we accept the contention of the plaintiff that the order constitutes a judgment by consent, the court below had full jurisdiction to hear the matter on the motion of the defendant and to make the order from which plaintiff appeals."

Ordinarily, in entering a judgment for the support of a minor child or children, the ability to pay as well as the needs of such child or children will be taken into consideration. Such decree is subject to alteration upon a change of circumstances affecting the welfare of the child or children. G.S. § 50-13; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Hardee v. Mitchell, supra; Story v. Story, supra.

We think the facts found by the court below are sufficient to show such change in the temporary financial circumstances of the plaintiff as to justify the inference that the welfare of the defendant's minor children has been affected thereby, and that such facts are sufficient to sustain the order for the temporary increase of the amount allowed for the support of these minor children. 17 Am.Jur., Divorce and Separation, section 703, page 534; 27 C.J.S., Divorce, § 322, page 1235 et seq.

The order of the court below will be upheld.

Affirmed.