Harding v. Harding , 29 N.C. App. 633 ( 1976 )

225 S.E.2d 590 (1976) 29 N.C. App. 633

Dorothy Salter HARDING (Crew)
v.
Harry HARDING.

No. 766DC105.

Court of Appeals of North Carolina.

June 16, 1976.

W. Lunsford Crew, Roanoke Rapids, for plaintiff appellee.

Roland C. Braswell, Goldsboro, for defendant appellant.

HEDRICK, Judge.

Defendant contends the court erred in denying his motion "that all support for all the children more than eighteen years of age be discontinued". On 5 July 1971, after entry of the original consent decree but before entry of any of the subsequent orders, G.S. 48A-2 became effective. It provides that "[a] minor is any person who has not reached the age of 18 years". In light of this statute, the authority of the court to require support for a normal child as a ward of the court ceases when the child becomes eighteen. Shoaf v. Shoaf, 282 N.C. 287, 192 S.E.2d 299 (1972); Nolan v. Nolan, 20 N.C.App. 550, 202 S.E.2d 344 (1974), cert. denied 285 N.C. 234, 204 S.E.2d 24 (1974). Thus, nothing else showing, where an order of the court for support entered prior to 5 July 1971 provides for support of the children until the age of majority, maturity, or emancipation, it has been interpreted, in light of G.S. 48A-2, to impose the legal obligation of support only to the child's eighteenth birthday. Shoaf, supra; Ramsey v. Todd, 25 N.C.App. 605, 214 S.E.2d 307 (1975). But, a parent can by contract assume an obligation to his child greater than the law otherwise imposes, and by contract bind himself to support his child after emancipation and past majority. Carpenter v. Carpenter, 25 N.C.App. 235, 212 S.E.2d 911 (1975), cert. denied 287 N.C. 465, 215 S.E.2d 623 (1975). It follows, too, that the court has the power to enforce the contract between the parties, to give effect to their intentions. Carpenter, supra, and cases cited therein.

In the present case, two orders were entered after 5 July 1971 in order to clarify defendant's obligation to support his children past their eighteenth birthdays. The 8 December 1971 order, from which there was no appeal, provides that "child support payments herein provided for shall continue until each of said older children, to-wit: Jim and Pattie, become twenty-one years of age. . . . The identical provisions shall apply for the younger child, Jeff Harding, with the exception that said provisions for support shall continue beyond his twenty-first birthday. . . ."

The original order of support provided that:

"When a child gets married or finishes his or her fourth year in college or stops going to school (whichever shall first occur), then the duty of the father to provide support for said child shall terminate.. . ."

It is clear from the original order and the subsequent December. 1971 order that defendant had agreed to support his children beyond their eighteenth birthday. Indeed, nothing in the original consent agreement even refers to the age of majority, maturity, or emancipation. Having consented to support his children through college in the original agreement and not having appealed the orders entered after 5 July 1971, which were for the specific purpose of clarifying defendant's obligation to support his children, defendant obligated himself to continue support of his children past their eighteenth birthdays. Defendant's argument is without merit and is overruled.

Defendant also contends the court erred in increasing support payments for Jeff and Pattie including the additional support required for the expense of Pattie's education. He argues that there was not evidence or findings sufficient to warrant any increase in the amount of support he was then paying.

In order to justify an increase in support, there must be evidence and findings of changed circumstances necessitating the additional payments. Waller v. Waller, 20 N.C.App. 710, 202 S.E.2d 791 (1974). The ultimate object "is to secure support commensurate with the needs of the child and the ability of the father to meet the needs." Crosby v. Crosby, 272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967).

With regard to the defendant's ability to meet the needs of the children, the court found that his net worth had increased since 1971; that his available income had increased; that he had refused to supply the court with copies of his latest financial reports; that he was able to pay the college expenses of his oldest sons, Steve and Jim, while they attended school; and that his obligation to support Steve and Jim had ceased. With regard to the needs of the children, the court found that plaintiff, who had been earning $7,200.00 per year, was no longer working; that Pattie and Jeff were residing with the plaintiff; "[t]hat the needs of said two children [had] increased. . ."; that Pattie is a freshman at the University of North Carolina; that Pattie's college education requires $3,000.00 per year, $1,486.64 of which had already been expended by plaintiff; and that defendant was presently paying $167.67 per month for the support of Pattie and Jeff.

The findings with respect to the ability of defendant to support his children are fully supported by his own testimony at the hearing. With respect to the expenses for Pattie's education, the evidence that she is in fact attending college supports a change in circumstances. Plaintiff's affidavit that expenses were $3,000.00 per year is evidence of the amount needed to meet the change in circumstances. Also, in the affidavit was a statement of increased cost of living expenses for the children which required an increase in support to $150.00 per month. Although more extensive findings could have been made with respect to the children's needs, defendant offered no evidence to contradict any of plaintiff's evidence. We hold that the evidence supports the findings and the findings support the order allowing $3,000.00 for college expenses and an increase in the amount of support by $25.00 per month. This assignment of error is overruled.

Finally defendant contends the court erred in allowing execution on the $1,700.00 judgment. He argues that the court orally stated on the day of the hearing that it would allow execution for only $1,216.71 and then increased the amount to $1,700.00 after the hearing in response to a private communication from plaintiff's attorney. The record discloses, however, that defendant's attorney was given a copy of the letter. He had an opportunity to rebut the contentions stated in the letter, and he failed to do so.

The evidence supports the full amount. We can perceive no prejudice to defendant because of a miscalculation made at the time of the hearing. This assignment of error has no merit.

The order appealed from is

Affirmed.

PARKER and ARNOLD, JJ., concur.