Matter of Register

277 S.E.2d 356 (1981)

In the Matter of Lori and Vicki REGISTER.

No. 7.

Supreme Court of North Carolina.

May 5, 1981.

*359 W. G. Smith and Bruce H. Jackson, Jr., Wilmington, for respondent-appellant.

Rufus L. Edmisten, Atty. Gen. by Henry H. Burgwyn, Associate Atty. Gen., Raleigh, amicus curiae.

HUSKINS, Justice:

The respondent appellant, Carol Malpass, and the Attorney General as amicus curiae have argued in their briefs whether the trial court erred by entering an order requiring the mother of Vicki Register to make child support payments. Upon the facts and record of this case, the trial court erred in ordering Carol Malpass to pay $15.00 per week for the support and maintenance of her child, Vicki Register.

The controlling statutes are G.S. 50-13.4(b) and (c) which provide:

(b) In the absence of pleading and proof that circumstances of the case otherwise warrant, the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child. Such other circumstances may include, but shall not be limited to, the relative ability of all the above-mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. Upon proof of such circumstances the judge may enter an order requiring any one or more of the above-mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. (c) Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case.

"Taken together, these two statutes clearly contemplate a mutuality of obligation on the part of both parents to provide material support for their minor children where circumstances preclude placing the duty of support upon the father alone. Thus, where the father cannot reasonably be expected to bear all the expenses necessary to `meet the reasonable needs of the child[ren],' the court has both the authority and the duty to order that the mother contribute supplementary support to the degree she is able." Coble v. Coble, 300 N.C. 708, 711-12, 268 S.E.2d 185, 188 (1980); see also Flippin v. Jarrell, 301 N.C. 108, 270 S.E.2d 482 (1980).

In the present case, the support was divided equally between the father and mother. The statute provides that "the father, the mother, or any person, agency, organization or institution standing in loco parentis shall be liable, in that order, for the support of a minor child." (Emphasis added.) The statute places primary liability for the support of the minor child on the father. Therefore, Kenneth Register, the father of the minor child, is primarily liable for support of the child. It is his responsibility to pay the entire support of the child "[i]n the absence of pleading and proof that circumstances of the case otherwise warrant." The mother's duty is secondary. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976).

The question thus becomes whether there is a sufficient showing of circumstances that "otherwise warrant." The trial court ordered the father to pay $15.00 per week, a sum he had agreed to pay in 1968. There is no finding or showing that the father is unable to pay the full $30.00 per week required for the support of the child. The record is devoid of any evidence of the father's earning capacity. Before liability for support can be placed on any other person, including the mother, the pleadings and proof must demonstrate that the father cannot reasonably pay more than $15.00 for the support of the child.

*360 The Court of Appeals felt that the "circumstances of the case otherwise warrant" because the child was removed from the mother's home pursuant to a petition filed by the Department of Social Services alleging abuse of the child. This abuse arose out of the mother's continuing marital relations with Dudley Malpass. For this reason, custody was removed from the mother and placed in the hands of the maternal grandparents. Standing alone, the decision of the mother to reconcile with her second husband is not a sufficient circumstance to "otherwise warrant." A crucial circumstance is "the relative ability of all the ... parties to provide support or the inability of one or more of them to provide support." The order of the trial court contains no findings on this circumstance. The court has no authority under the statute to require the mother to make support payments until it has determined that (1) the father cannot reasonably make the entire payment and (2) the mother has the ability to make up the balance. The court must make a determination of the father's ability before any of the support obligation is placed on the mother.

The trial court was not bound by the amount the father agreed to pay under the terms of the 1968 divorce judgment. The court has the power to modify the amount upon a showing of changed conditions. G.S. 50-13.7(a); 2 Lee, N.C. Family Law § 151 (4th ed. 1980). Conditions certainly changed in this case from 1968 to the appealed order of equal support entered 12 December 1979. Over the years, the parties themselves had not adhered to the exact amounts specified in the separation agreement and divorce judgment. The court determined Vicki Register needed double the amount provided for in the 1968 separation agreement. The trial court did not, however, determine whether the father could pay any or all of the increased amount.

The case must, therefore, be remanded for appropriate findings by the trial court to determine the ability or inability of the father to support this minor child. If the child's needs exceed the ability of the father to pay, then the mother is required by law, to the extent of her ability, to contribute to the necessary support of the child.

For the reasons stated, the decision of the Court of Appeals is reversed and the case is remanded to that court for further remand to the Superior Court of New Hanover County for further proceedings consistent with this opinion.

REVERSED and REMANDED.