{ "id": 11919928, "name": "KATHERINE WILLIS MOYER, Plaintiff-Appellee v. MATTHEW BENNETT MOYER, Defendant-Appellant", "name_abbreviation": "Moyer v. Moyer", "decision_date": "1996-06-18", "docket_number": "No. COA95-887", "first_page": "723", "last_page": "726", "citations": [ { "type": "official", "cite": "122 N.C. App. 723" } ], "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": "44 ALR4th 520", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 110-133", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "parenthetical": "both the current statute, amended effective 1 January 1996, and the predecessor statute require a written support agreement, acknowledged before a certifying officer or notary public and approved by the court, before a biological or adoptive parent is legally bound to pay child support" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 52-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 1995, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "438 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "447" }, { "page": "447" }, { "page": "447" }, { "page": "447" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 382", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522407 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "385" }, { "page": "385" }, { "page": "385" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0382-01" ] }, { "cite": "310 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763336, 4764105, 4762317, 4760943, 4767702 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0822-05", "/nc/309/0822-02", "/nc/309/0822-01", "/nc/309/0822-04", "/nc/309/0822-03" ] }, { "cite": "306 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "543" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526303 ], "year": 1981, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0125-01" ] }, { "cite": "208 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "435", "parenthetical": "quoting 67A C.J.S. Parent and Child \u00a7 153, p. 548 (1978)" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549215 ], "year": 1974, "pin_cites": [ { "page": "232", "parenthetical": "quoting 67A C.J.S. Parent and Child \u00a7 153, p. 548 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0230-01" ] }, { "cite": "197 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553206 ], "year": 1973, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0647-01" ] }, { "cite": "143 S.E. 216", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "opinion_index": 0 }, { "cite": "195 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631104 ], "year": 1928, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/195/0628-01" ] } ], "analysis": { "cardinality": 515, "char_count": 9314, "ocr_confidence": 0.748, "pagerank": { "raw": 2.2643828960101958e-07, "percentile": 0.7830166932512281 }, "sha256": "06294636639a7e5788e74f68aeec0d6aac5725bbca46371e8051791646596db1", "simhash": "1:a99074254acaf64c", "word_count": 1520 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and WYNN concur." ], "parties": [ "KATHERINE WILLIS MOYER, Plaintiff-Appellee v. MATTHEW BENNETT MOYER, Defendant-Appellant" ], "opinions": [ { "text": "SMITH, Judge.\nThe central issue in this case is whether the trial court properly ordered defendant stepfather to provide child support payments and other benefits such as dental insurance, health insurance, and housing for his stepchild based on a voluntary written agreement signed by both spouses. Since the written agreement was not executed with the formalities required by law, we reverse.\nPlaintiff and defendant married on 24 October 1987 in Carteret County. The parties eventually moved to Elizabeth City, North Carolina and purchased a home, titled jointly, with funds from defendant\u2019s inheritance.\nThe couple had a son, Christopher Matthew Moyer, who was bom in 1990. In addition, plaintiff had a daughter, Kandace Joy Leann Willis Moyer, born in 1985, from a prior relationship. The information provided for Kandace\u2019s birth certificate was supplied without defendant\u2019s knowledge and falsely stated that defendant was Kandace\u2019s biological father.\nDuring the marriage and after separation, defendant provided support for both his biological child and his wife\u2019s child from her prior relationship. The parties separated 12 May 1994. .\nThe parties signed a handwritten agreement dated 19 May 1994, after their separation, in which defendant agreed to pay child support for both children in a total of $400.00 per month. The agreement was not acknowledged and the terms agreed upon were effective only \u201cuntil more permanent arrangements were decided upon.\u201d The court received no evidence concerning the biological father\u2019s ability to meet Kandace\u2019s financial needs and no effort had been made to locate him.\nThe district court heard the case on plaintiff\u2019s request for alimony pendente lite, child custody, support for both minor children, attorney\u2019s fees, and writ of possession for the former marital residence. The court, inter alia, awarded plaintiff custody of the children and pursuant to the written agreement of 19 May 1994 and the trial court\u2019s conclusion that defendant was in loco parentis to Kandace during the marriage, ordered defendant to pay child support for both children in an order dated 23 May 1995. Defendant timely appealed those portions of the order relating to support of Kandace.\nAt common law, the relationship between stepparent and stepchild does not of itself confer any rights or impose any duties upon either party. State v. Ray, 195 N.C. 628, 629, 143 S.E. 216 (1928). In contrast, if a stepfather voluntarily takes the child into his home or under his care in such a manner that he places himself in loco paren-tis to the child, he assumes a parental obligation to support the child which continues as long as the relationship lasts. In re Dunston, 18 N.C. App. 647, 649, 197 S.E.2d 560, 562 (1973). This Court has defined a person in loco parentis as \u201c \u2018one who has assumed the status and obligations of a parent without formal adoption.\u2019 \u201d Shook v. Peavy, 23 N.C. App. 230, 232, 208 S.E.2d 433, 435 (1974) (quoting 67A C.J.S. Parent and Child \u00a7 153, p. 548 (1978)). However, the fact that a stepfather is in loco parentis to a minor child during marriage to the child\u2019s mother does not create a legal duty to continue support of the child after the marriage has been terminated either by death or divorce. Newman v. Newman, 64 N.C. App. 125, 129, 306 S.E.2d 540, 543 (citing 3 Robert E. Lee, North Carolina Family Law \u00a7 238, at 191 (4th ed. 1981)), disc. review denied, 309 N.C. 822, 310 S.E.2d 351 (1983). The Newman court held that \u201ca stepparent is not under a blanket obligation to support children of his spouse\u2019s former marriage.\u201d Id.) see also Lee, supra, \u00a7 228.5, at 73 (Cum. Supp. 1995). The manifest intent of the Newman rule is to establish the obligations of a stepfather toward his wife\u2019s children which are not his own.\nIn Duffey v. Duffey, 113 N.C. App. 382, 385, 438 S.E.2d 445, 447 (1994), we held that N.C. Gen. Stat. \u00a7 50-13.4(b) (1995) requires the natural or adoptive father and mother to be primarily liable for the support of a minor child. Additionally, this statute provides that any other person, agency, organization or institution standing in loco par-entis is secondarily liable. Id. Since defendant was in loco parentis to Kandace during the marriage, as found by the lower court, he is at most only secondarily liable for the support of his stepdaughter.\nCircumstances that may require a person in loco parentis to pay child support may include, but are not limited to: (1) the relative ability of the natural or adoptive parents to provide for the support or (2) the inability of one or more of them to provide support, and the needs and estate of the child. Duffey, 113 N.C. App. at 385, 438 S.E.2d at 447; N.C. Gen. Stat. \u00a7 50-13.4(b). We observe that no evidence exists in the record which might trigger the obligation of this defendant standing in loco parentis. Even though the record indicates that plaintiff is in need of child support for the minor children, the record is devoid of any evidence indicating the capability of the natural father to pay for Kandace\u2019s support. Since primary responsibility of Kandace\u2019s biological father has not been determined and no effort has been made to locate him, secondary liability will not attach to require defendant to pay.\nIn addition, the court may not order that support be paid by a person standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. Duffey, 113 N.C. App. at 385, 438 S.E.2d at 447; N.C. Gen. Stat. \u00a7 50-13.4(b). Although defendant signed a voluntary support agreement until more permanent arrangements could be made, the writing was not executed with the formalities required by law. We believe that N.C. Gen. Stat. \u00a7 52-10.1, which deals with separation agreements, and \u00a7 50-13.4(b), which con-cems primary liability for child support of natural or adoptive parents and secondary liability for persons or entities standing in loco paren-tis, must be construed in pari materia. Thus, we conclude that the General Assembly intended that the writing referred to in \u00a7 50-13.4(b) be executed in accordance with the requirements of \u00a7 52-10.1. Therefore, the written agreement in the case sub judice should have met the formalities of \u00a7 52-10.1.\nSince the formalities required by Duffey and N.C. Gen. Stat. \u00a7 50-13.4(b) and \u00a7 52-10.1 for the writing were ignored, defendant could not be required to pay child support even if both Kandace\u2019s natural parents (those primarily liable) were deemed unable to pay. If the rule were otherwise, a stepparent in loco parentis could find himself with a legal duty of support without the formalities required to bind a biological or adoptive parent to an identical obligation. Such a result is illogical, not in the interest of public policy, as it places a stricter duty on a stepparent in loco parentis, than on a biological or adoptive parent. See N.C. Gen. Stat. \u00a7 110-133 (1995) (both the current statute, amended effective 1 January 1996, and the predecessor statute require a written support agreement, acknowledged before a certifying officer or notary public and approved by the court, before a biological or adoptive parent is legally bound to pay child support).\nA person in loco parentis can make themselves liable for child support by signing a written agreement. Duffey, 113 N.C. App. at 385, 438 S.E.2d at 447. This case is distinguishable from Duffey because the formalities required by N.C. Gen. Stat. \u00a7 52-10.1 were present there. The divorce decree incorporated the writing as well. In addition, the husband in Duffey clearly agreed in the writing to continue supporting his stepchildren after dissolution of the marriage. In contrast, the voluntary support agreement signed by the parties in this case was not acknowledged. The stepfather ambiguously agreed to support his stepchild only \u201cuntil more permanent arrangements were decided upon.\u201d\nFor the foregoing reasons, we reverse and remand the trial court\u2019s order requiring defendant to pay for child support and provide other benefits for his stepdaughter Kandace Joy Leann Willis Moyer.\nReversed and remanded.\nJudges EAGLES and WYNN concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "No brief filed for plaintiff appellee.", "Twiford, Morrison, O\u2019Neal & Vincent, L.L.P., by Edward A. O\u2019Neal, for defendant appellant." ], "corrections": "", "head_matter": "KATHERINE WILLIS MOYER, Plaintiff-Appellee v. MATTHEW BENNETT MOYER, Defendant-Appellant\nNo. COA95-887\n(Filed 18 June 1996)\nParent and Child \u00a7 29 (NCI4th)\u2014 support of stepchild \u2014 written agreement not executed according to statute \u2014 support not required\nThe trial court erred in ordering defendant stepfather to provide child support payments and other benefits for his stepchild based on a voluntary written agreement signed by both spouses, since the written agreement was not executed with the formalities required by law in that it had no acknowledgement and contained an ambiguous agreement to support the child only \u201cuntil more permanent arrangements were decided upon.\u201d N.C.G.S. \u00a7\u00a7 50-13.4(b) and 52-10.1.\nAm Jur 2d, Parent and Child \u00a7\u00a7 41 et seq.\nStepparent\u2019s postdivorce duty to support stepchild. 44 ALR4th 520.\nAppeal by defendant from order entered 23 May 1995 by Judge Christopher Bean in Pasquotank County, District Court. Heard in the Court of Appeals 4 June 1996.\nNo brief filed for plaintiff appellee.\nTwiford, Morrison, O\u2019Neal & Vincent, L.L.P., by Edward A. O\u2019Neal, for defendant appellant." }, "file_name": "0723-01", "first_page_order": 759, "last_page_order": 762 }