Perry v. Perry

234 S.E.2d 449 (1977) 33 N.C. App. 139

Jane J. PERRY
v.
David F. PERRY.

No. 766DC775.

Court of Appeals of North Carolina.

May 4, 1977. Certiorari Denied June 13, 1977.

Carter W. Jones and Ralph G. Willey, III, Ahoskie, for plaintiff-appellee.

Revelle, Burleson & Lee by L. Frank Burleson, Jr., Murfreesboro, for defendant-appellant.

Certiorari Denied by Supreme Court June 13, 1977.

PARKER, Judge.

Defendant contends there was insufficient evidence of a change in the child's circumstances and needs to support the pendente lite order directing him to make child support payments larger than provided in the separation agreement. In particular, he contends that it was necessary that the plaintiff present evidence not only to show the needs of the child at the time of the hearing but also to show what those needs had been at the time the separation agreement was signed, and he contends that in absence of such evidence and findings based thereon showing a change in the needs of the child, the court was not warranted in ordering him to make the increased payments. Defendant's contentions are based on a misconception of the effect of the separation agreement upon the court's power to protect the welfare of the child. What was said by Sharp, J. (now C. J.), speaking for the Court in Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964), is applicable to the present case:

"When a wife petitions the judge to increase the amount which the Court itself has previously fixed for the support of minor children, she assumes the burden of showing that circumstances have changed between the time of the order and the time of the hearing upon the petition for the increase. In such case, she must show either that the need of the children or the cost of their support has increased, or that the ability of the father to pay has increased if the amount originally fixed was inadequate because of the father's inability to pay more. However, prior to the entry of the order appealed from in this case, the defendant's support payments for the children had been made pursuant to the terms of a deed of separation which was in no way binding on the court insofar as it applied to the children. Therefore, plaintiff's only burden was to show the amount reasonably required for the support of the children at the time of the hearing. The amount which the parties fixed [in their deed of separation] was merely evidence for the judge to consider, along with all the other evidence in the case, in determining a reasonable amount, for support of the children." 261 N.C. at 58-59, 134 S.E.2d at 234.

It was, therefore, not necessary in this case for the plaintiff to present evidence or for the court to make findings as to what the needs of the child had been at the time the separation agreement was signed.

Although the provisions of a valid separation agreement relating to marital and property rights of the parties 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, 195, 146 S.E.2d 73, 77 (1966). No agreement between the parents will serve to deprive the court of its inherent authority to protect the interests and provide for the welfare of infants. Husband and wife "may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court." Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E.2d 487, 491 (1963). Nevertheless, where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions. Fuchs v. Fuchs, supra.

Here, there was ample evidence of a change in conditions. The mother's serious illness and the resulting drastic reduction in her income immediately and directly affected one source of support for the child. A change far less drastic, the mother's loss of her job as a teacher, was held in Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721 (1957), sufficient to show that the welfare of the minor children had been affected and to sustain an order increasing the amount of child support payments required of the father over those provided for in a separation agreement. G.S. 50-13.4, which deals with an action for the support of a minor child, provides in part as follows:

G.S. 50-13.4

"(b) In the absence of a 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 . . ..

(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."

Here, the trial court made detailed findings as to the needs of the child and as to the relative ability of the parties to provide for those needs. Included is a finding that defendant earns a gross salary of $238.50 every week from which he could provide a reasonable support for his child. These findings are fully supported by admissions in the pleadings and by evidence presented. In turn, the court's factual findings support its conclusions and its order awarding custody to the plaintiff and directing the defendant to pay increased child support payments pendente lite and counsel fees.

The final question presented by this appeal involves the denial by the trial judge of defendant's motion that the judge disqualify himself from the trial of this case. Prior to filing answer, the defendant moved that the judge disqualify himself on the grounds that he had presided at a prior criminal trial in which defendant had been charged with failing to provide adequate support for his child. Although defendant was found not guilty, defendant asserted that he could not get a fair trial in this case because the judge had erroneously admitted testimony in the criminal trial concerning income earned by defendant's present wife and because the judge, after announcing the verdict of not guilty in the criminal trial, had "stated on open court in substance that two people having the income defendant and his present wife have could or should furnish more child support than called for by the separation agreement." In denying this motion, the trial judge stated that he did not remember any evidence from the criminal trial as to the income of defendant's present wife and would not consider such evidence. No such evidence was admitted at the trial of this case, and an allegation in plaintiff's complaint relating to it was ordered stricken on motion of the defendant. In denying defendant's motion that he disqualify himself, the judge also stated that he did not remember making the statement attributed to him by the defendant. Even had the judge made such a statement, we perceive no sufficient grounds why the judge should have been required to disqualify himself. The record reveals that the judge conducted the hearings leading up to the pendente lite order here appealed from in a fair and impartial manner. The order appealed from is

Affirmed.

BROCK, C. J., and ARNOLD, J., concur.