Bridges v. Bridges , 85 N.C. App. 524 ( 1987 )

355 S.E.2d 230 (1987)

Malene BRIDGES (Murad)
v.
David A. BRIDGES.

No. 863DC976.

Court of Appeals of North Carolina.

May 5, 1987.

No brief for plaintiff-appellee.

Dallas Clark, Jr., Greenville, for defendant-appellant.

MARTIN, Judge.

Defendant assigns error only to those portions of the trial court's order which require him to pay the expenses of the children's college educations. He excepts to Findings of Fact 14, 15 and 16, contending that such findings are not supported by the evidence. He further contends that, in the absence of an agreement to pay such expenses, the court was without authority to require him to provide any support for the children after they attained their majority and graduated from high school. We agree with each of his contentions.

Where the trial court sits without a jury, its findings of fact have the force and effect of a jury verdict and are conclusive on appeal if supported by competent evidence, even though there may be evidence to support contrary findings. Williams v. Pilot Life Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). However, if there is no competent evidence to support a finding of fact, an exception to the finding must be sustained and a judgment or order predicated upon such erroneous findings must be reversed. Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970).

The testimonial evidence in the present case is set out in narrative form in the record on appeal, pursuant to App.R. 9(c)(1). Plaintiff's testimony relating to the alleged agreement by defendant to pay the children's college expenses was as follows:

After we separated and signed the Separation Agreement, I tried to seek an increase in child support. David told me that he had put money away for college education and he could not make any extra payments for child support.

At some point in 1985, I talked to David about college education for the children, and he said that he would not make that payment. David told me that Bryan had the option to join the service, or ROTC at college, to assist in his education.... I just assumed that David was going to pay for Bryan's college education.

David never consented to paying the college education for Bryan or Kim, and he has furnished no support for Bryan's education. I am helping send Bryan to college this year,.... David is paying nothing toward his college.

Defendant testified:

I never made an oral agreement, or any other kind of agreement, with Malene to pay for the college education for Bryan or Kim.

The parties stipulated that no written modification had ever been made to the separation agreement. Thus, the trial court's Findings of Fact 14 and 15 are unsupported by the evidence and must be disregarded. Likewise, the record is absolutely devoid of any evidence or indication that defendant agreed at the hearing to pay for the children's college expenses; therefore, Finding of Fact 16 is unsupported and defendant's exception to it must be sustained.

G.S. 50-13.4(c) provides, in pertinent part, that:

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

(1) If the child is otherwise emancipated, payments shall terminate at that time;

(2) If the child is still in primary or secondary school when he reaches age 18, the court in its discretion may order support payments to continue until he graduates, otherwise ceases to attend school on a regular basis, or reaches age 20, whichever comes first.

Thus, it is clear that in the absence of an enforceable contract otherwise obligating a parent, North Carolina courts have no authority to order child support for children who have attained the age of majority unless the child has not completed secondary schooling, or, pursuant to G.S. 50-13.8, the child is mentally or physically incapable of self-support. Appelbe v. Appelbe, 75 N.C. App. 197, 330 S.E.2d 57, disc. rev. denied, 314 N.C. 662, 336 S.E.2d 399 (1985). There being no enforceable contract in the present case, and no contention or indication that either child meets the statutory criteria for support after majority, we hold that the trial court had no authority to require defendant to pay the expenses of college education for his children. Accordingly, we vacate that portion of the order. Insofar as the order requires defendant to pay a portion of the arrearage in past due support payments and to provide support for Kimberly until she reaches the ages of eighteen, we affirm.

Affirmed in part; vacated in part.

ARNOLD and GREENE, JJ., concur.