Soper v. Soper , 29 N.C. App. 95 ( 1976 )

223 S.E.2d 560 (1976) 29 N.C. App. 95

Herbert A. SOPER
v.
Judith B. SOPER.

No. 7521DC968.

Court of Appeals of North Carolina.

April 7, 1976.

Nelson, Clayton & Boyles by Laurel O. Boyles, Winston-Salem, for plaintiff-appellant.

Hatfield & Allman by James W. Armentrout and Weston P. Hatfield, Winston-Salem, for defendant-appellee.

BRITT, Judge.

In his assignments of error, plaintiff contends the court erred in making the findings of fact and conclusions of law to which he preserved exceptions as indicated above, and in increasing the amount he is to pay for child support from $250 to $700 per month. We find no merit in the assignments.

In Childers v. Childers, 19 N.C.App. 220, 225, 198 S.E.2d 485, 488 (1973), the legal principles controlling the instant case are stated as follows:

"In North Carolina it is well settled that while the marital and property rights of the parties under the provisions of a valid separation agreement cannot be ignored or set aside by the court without the consent of the parties, such agreements are not final and binding as to the custody of minor children or as to the amount to be provided for the support and education of such minor children. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Kiger v. Kiger, 258 N.C. 126, 128 S.E.2d 235 (1962); Rabon v. Ledbetter, 9 N.C.App. 376, 176 S.E.2d 372 (1970). Yet where parties to a separation agreement agree upon the amount of the support and maintenance of their minor children, there is a presumption in the absence of evidence to the contrary, that the amount mutually agreed upon is just and reasonable and that upon motion for an increase in such allowance, a court is not warranted in ordering an increase in the absence of any evidence of a change of conditions. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963). . . ."

While both parties recognize the validity of the quoted principles, they disagree as to their applicability here. Plaintiff argues that the evidence presented at trial was not sufficient to show that the amount for child support agreed upon by the parties was unjust or unreasonable, or that there had been a substantial change of conditions. Defendant argues that the evidence was sufficient; we agree with defendant.

The evidence discloses that, at plaintiff's insistence, defendant was not represented by counsel in negotiating the terms of the separation agreement and that it was drafted by plaintiff's attorney. While defendant does not attack the validity of the agreement, she stresses this fact to explain why the agreement was written to provide plaintiff with income tax advantages. The evidence fully supports the findings of fact on that point.

In her testimony defendant clearly showed a substantial change in conditions between the date of the separation agreement and the date of the trial. She testified that as a result of returning to work she had to employ housekeepers or babysitters to be present when the children returned from school and remain with them until she arrived at home, at a cost of approximately $3,000 per year; that, based on cancelled checks and receipts, her expenses for the children during 1974 amounted to $15,750, which sum included clothing, food, transportation, entertainment, vacations and two-thirds of the cost of upkeep of the house; and that the major changes in her expenses for the children since signing the separation agreement were the additional $3,000 expense for child care and increases due to inflation.

While it might have been better for the court in its findings to have provided more detail on the $8,400 figure, we think, under the facts in this case and the evidence presented, that the findings are sufficient and hold that they are fully supported by the evidence. We further hold that the conclusions of law are supported by the findings of fact and fully warrant the order increasing child support payments.

The order appealed from is

Affirmed.

PARKER and CLARK, JJ., concur.