{ "id": 11917312, "name": "LINDA L. SNIPES, now LINDA LASHLEY, Appellant v. JOHN R. SNIPES, Appellee", "name_abbreviation": "Snipes v. Snipes", "decision_date": "1995-03-21", "docket_number": "No. 925DC1301", "first_page": "189", "last_page": "200", "citations": [ { "type": "official", "cite": "118 N.C. App. 189" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "61 ALR3d 657", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "61 ALR3d 520", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "73 ALR2d 1444", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "358 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "320 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724867, 4729541, 4725739, 4731630, 4730074 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0166-04", "/nc/320/0166-05", "/nc/320/0166-02", "/nc/320/0166-01", "/nc/320/0166-03" ] }, { "cite": "354 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "294" }, { "page": "295", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169671 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0138-01" ] }, { "cite": "421 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "383", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527853 ], "year": 1992, "pin_cites": [ { "page": "616-17", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0615-01" ] }, { "cite": "333 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1985, "pin_cites": [ { "page": "771" }, { "page": "769" }, { "page": "767" }, { "page": "770" }, { "page": "771" }, { "page": "771" }, { "page": "770" }, { "page": "771" }, { "page": "771" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527374 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "408" }, { "page": "408-09" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0401-01" ] }, { "cite": "300 N.W.2d 275", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10680594 ], "year": 1980, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nw2d/300/0275-01" ] }, { "cite": "285 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568167, 8568205, 8568301, 8568272, 8568240 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0390-01", "/nc/304/0390-02", "/nc/304/0390-05", "/nc/304/0390-04", "/nc/304/0390-03" ] }, { "cite": "52 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170120 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0203-01" ] }, { "cite": "438 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "418-19" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520999 ], "year": 1993, "pin_cites": [ { "page": "145-46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0142-01" ] }, { "cite": "448 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551555, 2551689, 2552697, 2552187, 2550815 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0694-01", "/nc/337/0694-05", "/nc/337/0694-02", "/nc/337/0694-04", "/nc/337/0694-03" ] }, { "cite": "442 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527801 ], "pin_cites": [ { "page": "542-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0538-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "pin_cites": [ { "page": "(a)", "parenthetical": "\"Each past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason . . . .\"" } ], "opinion_index": 0 }, { "cite": "404 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "163", "parenthetical": "wife's duty to pay note owed to husband was a condition precedent under the parties' separation agreement to husband's duty to assume marital debts" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525568 ], "year": 1991, "pin_cites": [ { "page": "723", "parenthetical": "wife's duty to pay note owed to husband was a condition precedent under the parties' separation agreement to husband's duty to assume marital debts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0719-01" ] }, { "cite": "298 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "341-42" }, { "page": "386" }, { "page": "342" }, { "page": "342" } ], "opinion_index": 0 }, { "cite": "307 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562460 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "385-86" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0381-01" ] }, { "cite": "278 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1981, "pin_cites": [ { "page": "555, 556" }, { "page": "555" }, { "page": "555-56", "parenthetical": "italicized in original" }, { "page": "556", "parenthetical": "emphasis deleted" }, { "page": "557" }, { "page": "557-58", "parenthetical": "citations omitted" }, { "page": "558" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 988, "char_count": 25628, "ocr_confidence": 0.726, "pagerank": { "raw": 6.428965615154966e-08, "percentile": 0.397216594480991 }, "sha256": "150b56e7b073b7d73d8c42f148eaa29008ec17a8190d0f38076e49bde1d3aa81", "simhash": "1:8a6fc06cea761c5b", "word_count": 4205 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN, John C. concur." ], "parties": [ "LINDA L. SNIPES, now LINDA LASHLEY, Appellant v. JOHN R. SNIPES, Appellee" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiff contends the trial court erred by denying her motion to adjust and increase the amount of defendant\u2019s monthly child support obligation. We disagree.\nPertinent facts and procedural information are as follows: Plaintiff Linda Lashley (Linda) and defendant John Snipes (John) were previously married and had one child,.John R. Snipes, Jr. (Jr.), born 17 March 1981. The parties eventually separated, entering into a \u201cSeparation Agreement and Property Settlement\u201d (the Agreement) on 19 February 1987. Linda was given primary custody of Jr., and John agreed to pay the sum of $523.00 each month for Jr.\u2019s support beginning 1 April 1987. The Agreement also specified:\nthat on the anniversary date of this agreement, this child support payment shall be increased by a percentage equal to the increase, if any, in the consumer price index as published by the Department of Labor and existing on December 31, of the preceding year. Wife shall notify the Clerk of Court of the increase each January and the new figure for support shall be entered on the Court\u2019s records.\nThe parties agreed John\u2019s monthly child support payments were to be distributed to Linda by the New Hanover County Clerk of Superior Court. In furtherance of this arrangement and contemporaneously with execution of the Agreement, John filed with the Clerk a \u201cStatement Authorizing Entry of Judgment by Confession\u201d pursuant to N.C.R. Civ. P. 68.1 (1990).\nThereafter, the District Court entered Judgment by Confession (the Judgment) on 27 February 1987, incorporating in substance the entirety of the parties\u2019 child support arrangement and providing in relevant part as follows:\nIt is Ordered, Adjudged and Decreed as Follows:\n1. That the defendant shall pay through the Clerk of Court to the plaintiff the sum of $623.00 per month to be used for the support and maintenance of their minor child, John R. Snipes, Jr., born March 17, 1981, and the sum shall be paid as follows:\nThe sum of $523.00 per month beginning on the 1st day of April, 1986 [sic] and continuing thereafter in consecutive payments every month of a like amount until such time as plaintiff notifies the Clerk of a change in the amount of the support obligation, said sum shall change according to a percentage equal to the increase, if any, in the consumer price in[dex] as published by the Department of Labor and existing on December 31 of the preceding year. In January of each year plaintiff shall notify the Clerk of any increase due as a result of an increase, if any, in the consumer price index as published by the Department of Labor and existing on December 31 of the preceding year. Defendant shall continue to make monthly support payments until the minor child ... shall attain the age of eighteen (18) years, or, if the minor child is still in primary or secondary school at the time he attains the age of eighteen (18) years, until the minor child graduates, ceases to attend school on a regular basis, or reaches the age of twenty (20), whichever comes first....\nJohn subsequently made $523.00 child support payments into the Clerk\u2019s office each month, commencing 1 April 1987 and continuing until April 1992 without interruption.\nOn 16 March 1988, Linda notified the Clerk of Court by letter of a 4.4% increase in the consumer price index (C.P.I.). Her letter included this paragraph:\nEffective February 19, 1988, please be advised that the monthly child support payment for John R. Snipes, Jr. (Jon-Jon) should increase by 4.4%, or $23.01, making the total monthly allotment $546.01.\nNo increase was noted in the court\u2019s records, however, and John continued to pay $523.00 per month. Linda accepted that sum for nearly four years without advising the Clerk of additional annual increases in the C.P.I. In addition, the record reflects no objection by Linda to continuation of the $523.00 monthly payments.\nBy letter dated 31 January 1992, Linda provided the Clerk with C.P.I. increases for the years 1988 through 1991 as well as the sum she calculated should actually have been paid by John. Specifically, she stated that in 1988, the C.P.I. increase was 4.4%; in 1989, 4.4%; 1990, 4.6%; and in 1991, 6.1%. The letter also contained an express waiver by Linda of the increase allegedly due for 1988, but claimed John should have paid $546.01 for each month in 1989; $570.03 per month in 1990; and $604.80 monthly in 1991.\nAgain no notation was subsequently made in the court\u2019s records indicating an increase in John\u2019s child support obligation, nor was he directed to pay any greater monthly amount. On 3 April 1992, Linda filed a Motion in the Cause requesting adjustment of John\u2019s child support obligation so as to reflect computation according to the formula set out in the Judgment. Specifically, she sought \u201cadjust[ments] and increase [s] for each year since 1987\u201d on the grounds that although she had informed the Clerk of the C.P.I. increases, she \u201cha[d] been unsuccessful in implementing increases ... by this means.\u201d\nJohn subsequently requested \u201camendment\u201d of the Judgment by a Motion in the Cause filed 27 May 1992, alleging the provision for automatic increases in his child support obligation was void as against public policy. He further sought issuance of an order establishing his future obligation by reference to the North Carolina Child Support Guidelines (the Guidelines).\nIn his 10 June 1992 response to Linda\u2019s Motion in the Cause, John reiterated his contention that the child support increase provision of the Agreement (upon which the Judgment was based) was void as against public policy. He further claimed Linda should be equitably estopped from requesting back child support because she had failed to comply with certain notice requirements provided in the Judgment. Additionally, by \u201ccountermotion,\u201d John asserted that his inability to pay the greater amount of child support sought by Linda constituted a substantial change in circumstances warranting a modification of the Judgment.\nHearing on the three motions was held 3 August 1992.Ultimately, the trial court granted John relief from the Judgment, and allowed his motion requesting that his child support obligation be established in accordance with the Guidelines, calculating the amount thereunder as $506.00 each month beginning 1 September 1992. Linda\u2019s motion for modification was expressly denied, as was her prayer to recover the difference between what she alleged John owed and what she had actually received.\nThe court\u2019s order, from which Linda\u2019s appeal is taken, includes the following pertinent findings of fact and conclusions of law:\nFindings of Fact\n3. The aforesaid Separation Agreement and Property Settlement provided... for an increase in the amount of support on the first anniversary date of this agreement and on each anniversary thereafter by reference to the Consumer Price Index as published by the Department of Labor.\n4. The aforesaid provision as to child support was reiterated in a Statement Authorizing Entry of Judgment by Confession executed by the Defendant on February 19, 1987, and a Judgment by Confession which essentially restated the aforesaid agreement of the parties concerning child support and increases thereto was signed by the undersigned Judge and entered on February 27, 1987.\n5. The aforesaid Judgment by Confession was entered by this Court without actual hearing by the Court to determine the needs of the child or the abilities of the parties to provide for those needs.\nConclusions of Law\n2. This Court is not bound by the terms and provisions of the agreement of the parties as contained in the Separation Agreement and Property Settlement and the Statement executed by the Defendant and the Judgment by Confession entered herein because the same do not meet the requirements as set forth by the Court of Appeals of North Carolina in Falls v. Falls. 278 S.E.2d 546 (1981) and specifically, said Judgment did not contain the provisions set forth at page 556 thereof.\n5. Defendant is not in arrears in his obligation to pay child support.\nLinda\u2019s sole argument is that the trial court erred by failing to enforce the Judgment which she contends entitled her to certain increases in child support prior to the 3 August 1992 hearing. She does not contest the amount of child support ordered derived by application of the Guidelines. She also does not dispute the legal theory underlying the court\u2019s refusal to allow prospective automatic annual increases in child support by reference to C.P.I. statistics; she therefore has not appealed the court\u2019s determination with respect to payments required of John in the future.\nInstead, Linda\u2019s challenge to the trial court\u2019s order is based exclusively upon her contention that the Judgment constituted res judi-cata concerning increases in child support allegedly due before the 3 August 1992 hearing. As stated in Linda\u2019s appellate brief: \u201c[P]laintiff\u2019s appeal is directed ... at the effect of the Judgment by Confession entered in 1987 . . . and the trial court\u2019s ability to retroactively nullify its effect.\u201d Stated otherwise, \u201c[t]he plaintiff asks for that which the law has already given her and cannot now take away.\u201d See Appellant\u2019s Brief, at 9, 12.\nThe rule allowing for judgments by confession is N.C.R. Civ. R 68.1, which provides in pertinent part as follows:\n(a) For present or future liability. \u2014 A judgment by confession may be entered without action at any time in accordance with the procedure prescribed by this rule. Such judgment may be for money due or for money that may become due. Such judgment may also be entered for .. . support of minor children.\n(e) Force and effect. \u2014 Judgments entered in conformity with this rule shall have the same effect as other judgments except that no judgment by confession shall be held to be res judicata as to any fact in any civil action except in an action on the judgment confessed. When such judgment is for . . . support of minor children, the failure of the defendant to make any payments as required by such judgment shall subject him to such' penalties as may be adjudged by the court as in any other case of contempt of its orders.\nLinda correctly notes that upon entry of the Judgment incorporating the Agreement, she and John were constrained to seek relief from the court. See Walters v. Walters, 307 N.C. 381, 385-86, 298 S.E.2d 338, 341-42 (1983). Linda relies on Rule 68.1(e) above for her subsequent assertion that John was bound to pay child support as. required in the Judgment until modified prospectively as a result of the court\u2019s order. See Appellant\u2019s Brief, at 6 (\u201cBy inference, a confession of judgment has res judicata effect as to any finding of fact contained therein in an action on the judgment confessed.\u201d). Therefore, she continues, the trial court exceeded its authority by implicitly finding the automatic increase provision to be void as against public policy and thus failing to enforce it.\nHowever, even accepting arguendo Linda\u2019s questionable contention that the provision calling for annual increases in child support is properly considered a \u201cfact\u201d under Rule 68.1(e) such that res judi-cata by implication would apply, we decline to upset the trial court\u2019s ruling denying her motion to collect \u201carrearages.\u201d\nFirst, a study of the language contained in the Judgment reveals no support for Linda\u2019s assertion that the provision for child support increase is automatic or self-executing. Pursuant to the parties\u2019 Agreement, as included in the Judgment, \u201c [i]n January of each year plaintiff shall notify the Clerk of any increase due.\u201d (Emphasis added). It is undisputed that Linda first notified the Clerk of an increase in March 1988, well past the time provided in the Judgment. This notice was thus ineffective to activate an increase for 1988, and the Clerk properly did not alter John\u2019s support obligation. Moreover, although John continued to remit only the sum of $523.00 each month, Linda raised no objection to the failure to implement a higher payment for 1988 and in her 31 January 1992 letter to the Clerk waived any increase for that year.\nLinda also failed to provide notice of an increase under the C.P.I. at any time during 1989, 1990 and 1991, much less in January of those years, and neglected to interpose any objection to the amount she received. Upon such failure and under the terms of the Judgment, no increase was activated for those years. Because Linda did not abide by her own obligations under the Judgment \u2014 in particular the provision requiring that she give proper and timely notice of increases to the Clerk, she cannot now be heard to complain of any alleged arrear-age for those years or to assign as error the court\u2019s failure to order payment thereof. See, e.g., First Union Nat. Bank v. Naylor, 102 N.C. App. 719, 723, 404 S.E.2d 161, 163 (1991) (wife\u2019s duty to pay note owed to husband was a condition precedent under the parties\u2019 separation agreement to husband\u2019s duty to assume marital debts).\nNext, we also reject in similar vein Linda\u2019s argument that upon her act of notifying the Clerk of Court in January 1992 of claimed increases affecting calendar years through 1991, the alleged increased amounts became past due child support and her right to payment was thus vested at the time of the 3 August 1992 hearing. See N.C. Gen. Stat. \u00a7 50-13.10(a) (1987) (\u201cEach past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason . . . .\u201d). Absent issuance of a court order directing increased payments (following Linda\u2019s compliance with the terms of the Judgment), the alleged arrearage affecting calendar years through 1991 did not accrue and thus was not vested. See, e.g., Mackins v. Mackins, 114 N.C. App. 538, 542-43, 442 S.E.2d 352, 355 (payments accrue.and vest upon becoming \u201cdue and payable\u201d pursuant to a child support order), disc. review denied, 337 N.C. 694, 448 S.E.2d 527 (1994); see also Van Nynatten v. Van Nynatten, 113 N.C. App. 142, 145-46, 438 S.E.2d 417, 418-19 (1993).\nFinally, in his motion in the cause seeking \u201camendment\u201d of the Judgment, John contended the provision therein calling for automatic increases in his child support obligation was void as against public policy. The trial court did not rule directly on the issue and, for purposes of this opinion, we consider such a specific holding unnecessary as well. However, we agree with the court\u2019s implicit determination that the foregoing provision was void ab initio and therefore unenforceable.\nIn the case of Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, disc. review denied, 304 N.C. 390, 285 S.E.2d 831 (1981), this Court examined the propriety of the use of annual automatic increases in child support orders. Following a contested hearing and apparently on its own motion without request from the parties, id. at 215, 218, 278 S.E.2d at 555, 556, the trial court entered an order specifying that the father\u2019s monthly child support payments:\n[F]or each child shall be increased for the succeeding 12 months by such amount, if any, as may be necessary to keep the level of the payments, during those succeeding 12 months at a consistent level by comparison of the United States Consumer Cost of Living Index for the month of September, 1980, for the same month of the year 1981 and each year thereafter ... it being the intent of the Court that said payments be increased annually, consistent with the increase of the cost of living, as reflected by the official statistics of the United States ....\nId. at 216, 278 S.E.2d at 555.\nOn appeal, after acknowledging several potentially worthwhile attributes of a system whereby child support payments escalate automatically based upon the Cost of Living Index, this Court agreed with a majority of other jurisdictions and commentators which reject such formulas when they \u201cassume[] that no change will occur in other factors affecting child support.\u201d Id. at 216-18, 278 S.E.2d at 555-56 (italicized in original). We pointed out that the general reliability of C.P.I. statistics has not been established, and then disapproved \u201cthe attempt by the trial court to set up a self-adjusting, self-perpetuating support order . . . because the court ignored the relevant and changing circumstances surrounding the children and the parties,\u201d id. at 218, 278 S.E.2d at 556 (emphasis deleted), in contravention of North Carolina\u2019s statutory and case law. Id. at 219, 278 S.E.2d at 557. Specifically, we stated \u201c[t]o put in effect an automatic increase in the future based on one factor, a cost of living index whose [sic] reliability is totally unsubstantiated by the record, violates G.S. 50-13.4(c) . . . .\u201d Id.\nThereafter, we expressed our opinion that:\nan acceptable annual adjustment formula based on the percentage change in a generally accepted and accurate index of the cost of living should include, at a minimum:\n1. Provisions focusing not only on the needs of the child, but also on the relative abilities of the . . . parent[s] to pay;\n2. Provisions stating that if the non-custodial parent\u2019s income decreases, or increases by a lesser percentage than the percentage change in the index, then the child support payments shall decrease or increase by a like or lesser percentage;\n3. Provisions stating that if the parties are unable to determine or stipulate to the correct adjustment, either party may request that the court determine the same; and\n4. Provisions allowing either party to petition the court for modification due to a substantial and continuing change of circumstance.\nId. at 220, 278 S.E.2d at 557-58 (citations omitted).\nPlaintiff correctly points out that the Falls opinion contains no holding that provisions for automatic cost-of-living increases are void as against public policy, and bolsters her position with the statement in Falls that \u201cwe do not seek to discourage parties who, \u2018with a spirit of fairness and concern for their children, stipulate to a COLA formula for child support [since such a stipulation would seem to minimize] the risks of yearly resistance to increased support, with attendant legal expense and animosity Id. at 221, 278 S.E.2d at 558 (quoting In re Stamp, 300 N.W.2d 275, 279 (Iowa 1980)).\nHowever, the foregoing language from the Falls opinion was specifically interpreted in our subsequent case of Frykberg v. Frykberg, 76 N.C. App. 401, 333 S.E.2d 766 (1985) as referring only to agreements between parties which have not been incorporated into court orders' or judgments. Id. at 409-10, 333 S.E.2d at 771. In Frykberg, the parties entered into a separation agreement providing for adjustment in the amount of child support by reference to the C.P.I., with increases to occur on a yearly basis. Id. at 404-05, 333 S.E.2d at 769. Thereafter, the trial court entered a consent judgment which provided, inter alia, that the agreement was \u201cthe operative document governing [the parties\u2019] rights and liabilities arising from .their former marital relationship,\u201d but that it was \u201cnot necessary that [the agreement] be incorporated as part of this Court Order.\u201d Id. at 402, 333 S.E.2d at 767.\nClaiming her former husband had breached certain provisions of their separation agreement (which was \u201cnot. . . incorporated as part of th[e] [consent judgment]\u201d), the plaintiff wife in Frykberg sought specific performance of the agreement, including the section calling for automatic annual increases based upon the C.RI. The trial court, relying on language similar to that in the Falls decision, held that particular provision to be unenforceable and void as a matter of public policy. Id. at 407, 333 S.E.2d at 770.\nThe consent judgment at issue in Frykberg was entered in 1981\u2014 prior to the decision of our Supreme Court in Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983), which held that \u201cwhenever the parties bring [a] separation agreement[] before the court for the court\u2019s approval,\u201d the agreement will thereafter be treated not as a contract but rather as a \u201ccourt ordered judgment [].\u201d Id. at 386, 298 S.E.2d at 342. In the Frykberg appeal, this Court observed that \u201c[w]ere Walters applicable to the facts of the instant case, we would have no difficulty in affirming the order appealed from.\u201d Frykberg, 76 N.C. App. at 408, 333 S.E.2d at 771. However, because the holding in Walters was not to be applied retroactively, Walters, 307 N.C. at 386, 298 S.E.2d at 342, the Frykberg Court determined that even though the parties had brought the separation agreement before the court for approval, the agreement was not incorporated into the consent judgment, but was simply a contract between the parties. Frykberg, 76 N.C. App. at 408-09, 333 S.E.2d at 771.\nWe then examined the trial court\u2019s conclusion that the condition providing automatic child support increases based upon the C.P.I. was void in that it gave no consideration \u201cto the needs of the child []or the means or abilities of the parties,\u201d id. at 407, 333 S.E.2d at 770, and remarked \u201c[i]t was precisely for this reason\u201d that the Falls court \u201crefused to sustain a similar provision in a court order for child support.\u201d Id. at 409, 333 S.E.2d at 771. Noting the language from Falls quoted above, however, the Frykberg Court concluded the trial court had erred because the agreement at issue had not been incorporated into the court\u2019s judgment. Id. at 409-10, 333 S.E.2d at 771. Specifically, we held \u201cthat the provision for automatic increases in child support as a function of the Consumer Price Index, contained in the contractual agreement of the parties and not incorporated into the consent judgment, is not void as against public policy,\u201d and was thus enforceable. Id. (emphasis added). In the case sub judice, the Judgment by Confession is indisputably a court \u201corder.\u201d Further, plaintiff concedes in her appellate brief that the Judgment does not contain the Falls requirements noted above for a valid annual adjustment formula and that \u201cthe trial court improperly awarded annual increases in child support based upon the Consumer Price Index . . . .\u201d See Appellant\u2019s Brief, at 9. Under the directives of Falls and Frykberg, therefore, the provision of the Judgement by Confession herein ordering automatic child support increases based upon the C.P.I. was void.\nThis Court has repeatedly observed that \u201c[i]f a judgment is void, it is a nullity,\u201d Burton v. Blanton, 107 N.C. App. 615, 616-17, 421 S.E.2d 381, 383 (1992) (citation omitted), and \u201cestablishes no legal rights and may be vacated without regard to time.\u201d Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294 (citation omitted), disc. review denied, 320 N.C. 166, 358 S.E.2d 47 (1987). Moreover, \u201c[a] void judgment. . . binds no one and it is immaterial whether the judgment was . . . entered by consent.\u201d Id. at 144, 354 S.E.2d at 295 (citation omitted). The trial court thus did not err by refusing to enforce the Judgement by Confession provision directing automatic increases in child support based upon the C.P.I.\nAffirmed.\nJudges GREENE and MARTIN, John C. concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Robert U. Johnsen for plaintiff-appellant.", "Shipman & Lea, by James W. Lea, III, for defendant-appellee." ], "corrections": "", "head_matter": "LINDA L. SNIPES, now LINDA LASHLEY, Appellant v. JOHN R. SNIPES, Appellee\nNo. 925DC1301\n(Filed 21 March 1995)\n1. Divorce and Separation \u00a7 415 (NCI4th)\u2014 child support agreement \u2014 incorporation in court order \u2014 failure of plaintiff to fulfill obligation \u2014 no entitlement to arrearages\nBecause plaintiff did not abide by her own obligations under a judgment which incorporated the parties\u2019 child support agreement, in particular the provision requiring that she give proper and timely notice of child support increases based on the consumer price index to the clerk of court, she cannot now be heard to complain of any alleged arrearage for the years she did not give notice or to assign as error the court\u2019s failure to order payment thereof.\nAm Jur 2d, Divorce and Separation \u00a7 1075.\nCourt\u2019s power to modify child custody order as affected by agreement which was incorporated in divorce decree. 73 ALR2d 1444.\nDivorce: power of court to modify decree for alimony or support of spouse which was based on agreement of parties. 61 ALR3d 520, sec. 1.\nDivorce: power of court to modify decree for support of child which was based on agreement of parties. 61 ALR3d 657, sec. 1.\n2. Divorce and Separation \u00a7 417 (NCI4th)\u2014 child support increases \u2014 notice to clerk of court \u2014 increases not past due child support\nPlaintiff\u2019s act of notifying the clerk of court in January 1992 of claimed increases in child support affecting calendar years through 1991 did not cause the alleged increased amounts to become past due child support and thus did not cause her right to payment to be vested at the time of the 3 August 1992 hearing, since, absent issuance of a court order directing increased payments following plaintiff\u2019s compliance with the terms of the judgment, the alleged arrearage affecting calendar years through 1991 did not accrue and thus was not vested.\nAm Jur 2d, Divorce and Separation \u00a7 1081.\n3. Divorce and Separation \u00a7 435 (NCI4th)\u2014 child support order \u2014 automatic increase based on consumer price index \u2014 order void\nThe provision of a judgment which ordered automatic child support increases based on the consumer price index was void because it gave no consideration to the needs of the child or the means or abilities of the parties.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1082-1088.\nAppeal by plaintiff from judgment entered 7 August 1992 by Judge Elton G. Tucker in New Hanover County District Court. Heard in the Court of Appeals 28 October 1993.\nRobert U. Johnsen for plaintiff-appellant.\nShipman & Lea, by James W. Lea, III, for defendant-appellee." }, "file_name": "0189-01", "first_page_order": 221, "last_page_order": 232 }