Pifer v. Pifer , 31 N.C. App. 486 ( 1976 )

229 S.E.2d 700 (1976)

Anne Elizabeth PIFER
v.
Richard Donald PIFER.

No. 7625DC484.

Court of Appeals of North Carolina.

November 17, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Parks H. Icenhour, Raleigh, for the State.

Sigmon & Sigmon by W. Gene Sigmon, Newton, for the defendant appellee.

HEDRICK, Judge.

While the parties in this proceeding have argued extensively the merits and demerits of the several orders entered in this cause, the only question properly before us for review is whether Judge Edens erred in entering the order dated 26 November 1975 declining to hear and rule on the State's motion to have the ex parte order of Judge Cline filed on 16 July 1974 set aside as being null and void and to order defendant to make support payments, including arrearages, pursuant to the order entered on 16 August 1973.

If a court has no jurisdiction over the subject matter, the judgment is void. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26 (1944). "A void judgment is a nullity, and no rights can be based thereon. It can be disregarded, or set aside on motion, or the court may of its own motion set it aside, or it may be attacked collaterally." 2 McIntosh, N.C. Practice and Procedure, § 1713, p. 163.

While we are of the opinion that the ex parte orders of Judge Cline entered on 18 December 1973 and 15 February 1974 and filed on 16 July 1974 are void for more reasons than one, we deem it appropriate to discuss only whether Judge Cline had any jurisdiction under the Uniform Reciprocal Enforcement of Support Act (URESA) to condition the payment of child support upon certain visitation privileges in Florida and North Carolina.

The purpose of URESA, Chapter 52A of the General Statutes, is "to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto." G.S. 52A-2. (emphasis added). G.S. 52A-13 provides, "If the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order." (emphasis added). This duty of support is the only subject matter covered by URESA. Nothing in the act allows the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases.

In the present case it is our opinion that Judge Cline in the responding state of North Carolina had jurisdiction only to determine whether the defendant owed a duty of support to his children in the initiating state of Florida, and to enter an order requiring the defendant to furnish such support. Judge Cline had no jurisdiction whatsoever to condition the support payments upon certain visitation privileges for the defendant with his children in the responding or initiating state. Consequently Judge Cline had no authority to permit a discontinuance of the support payments upon a finding by him of an alleged violation of the condition of visitation privileges. Thus the ex parte orders, entered on 18 December 1973 and 15 February 1974 and filed 16 July 1974 permitting the defendant to cease support payments, are manifestly null and void, and Judge Edens erred in refusing to hear the state's motion to set these orders aside.

While we recognize that some states have adopted a contrary position with regard to the authority of the court of the responding state to condition the payment of support upon visitation privileges, Chandler v. Chandler, 109 N.H. 477, 256 A.2d 157 (1969), it is our opinion that our view is in accord with the better reasoned opinions of other jurisdictions. Vecellio v. Vecellio, Fla.App., 313 So.2d 61 (4th Dist. 1975); Commonwealth v. Posnansky, 210 Pa.Super. 280, 232 A.2d 73 (1967). As stated in Vecellio v. Vecellio, supra, at 62, "The father's remedy, if aggrieved, is to simply return to Pennsylvania [initiating state] where the mother and children reside and there obtain adjudication of any and all other matters of concern having to do with the family. In other words, the innocent children should not be deprived of support under these circumstances and where the Support Law does not contemplate that the mother must come to Florida [responding state] to enforce the support claim and defend against all other equitable and family matters."

Suffice it to say that we believe for the courts of the responding states to become involved in matters of custody and visitation in proceeding under URESA would create more problems than it solves, and is foreign to that portion of the act which provides, "Participation in any proceeding under this Chapter does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding." G.S. 52A-22.

For the reasons stated the order appealed from is reversed and the cause is remanded to the district court for a hearing upon the state's motion filed 9 October 1974.

Reversed and remanded.

BROCK, C. J. and PARKER, J., concur.