{
  "id": 8552036,
  "name": "MARIE C. CHILDERS v. DWAIN A. CHILDERS",
  "name_abbreviation": "Childers v. Childers",
  "decision_date": "1973-08-22",
  "docket_number": "No. 7325DC430",
  "first_page": "220",
  "last_page": "226",
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    "name": "North Carolina Court of Appeals"
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  "analysis": {
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Britt and Parker concur."
    ],
    "parties": [
      "MARIE C. CHILDERS v. DWAIN A. CHILDERS"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nRespondent\u2019s appeal challenges the sufficiency of the evidence upon which the trial court ordered an increase in child support and also the failure of the trial court to make any finding of fact of \u201cchanged circumstances\u201d upon which to justify an increase. Under the Uniform Reciprocal Enforcement of Support Act, it is the law of the state where the obligor is found, or the \u201cresponding state,\u201d which governs. G.S. 52A-8. Mahan v. Read, 240 N.C. 641, 83 S.E. 2d 706 (1954).\nIn 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). Similarly, G.S. 50-13.7 (a) provides:\n\u201cAn order of a court of this State for custody or support, or both, of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.\u201d (Emphasis added.)\nThe order appealed from in the case sub judice contains no finding as to any change of circumstances. While petitioner did state in her affidavit that she needed $150 per month for the bed and board of her child, she introduced no evidence of any change in the needs of her child or that the amount provided for under the separation agreement was inadequate or unreasonable. In the absence of any evidence and finding of any change in circumstances, it was error for the trial court to order an increase in the amount of child support and we so hold.\nAlso respondent contends that it was error for the trial court to find him \u201cguilty as charged of inadequate support under the Uniform Reciprocal Enforcement of Support Act,\u201d and in sentencing him to six months in jail, suspended on the payment of costs and $150 per month child support.\n\u201cA proceeding under the Uniform Reciprocal Enforcement of Support Act is a civil proceeding \u2018as in actions for alimony without divorce.\u2019 G.S. 52A-12.\u201d Cline v. Cline, 6 N.C. App. 523, 528, 170 S.E. 2d 645 (1969).\nWhile a trial court of a \u201cresponding state\u201d may punish a respondent for noncompliance with its orders \u201cas is provided by law for contempt of the court,\u201d G.S. 52A-15(8), and while certain provisions of the act provide for the interstate rendition of persons charged in other states with the crime of nonsupport, G.S. 52A-6, no statutory offense is created by the act and it was error for the trial court to treat it as such given the civil nature of the proceeding.\nAn examination of the finding of facts contained in the trial judge\u2019s order of 16 February 1973, set out above, reveals that the trial court was under a total misapprehension as to the applicable law, and for the reasons stated above, the judgment and order appealed from are\nReversed.\nJudges Britt and Parker concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Morgan, by Deputy Attorney General Vanore, and Associate Attorney Reed, for petitioner appellee.",
      "Cagle and Houck, by William J. Houck, for respondent appellant."
    ],
    "corrections": "",
    "head_matter": "MARIE C. CHILDERS v. DWAIN A. CHILDERS\nNo. 7325DC430\n(Filed 22 August 1973)\n1. Courts \u00a7 21; Parent and Child \u00a7 10 \u2014 Uniform Reciprocal Enforcement of Support Act \u2014 governing law\nUnder the Uniform Reciprocal Enforcement of Support Act, the law of the state where the obligor is found governs.\n2. Divorce and Alimony \u00a7 23 \u2014 no finding of changed circumstances \u2014 increase in support error\nTrial court erred in ordering an increase in the amount of child support due from respondent in the absence of any evidence and finding of any change in circumstances.\n3. Parent and Child \u00a7 10\u2014 Uniform Reciprocal Enforcement of Support Act \u2014 no statutory offense created\nNo statutory offense is created by the Uniform Reciprocal Enforcement of Support Act, and the trial court erred in finding respondent guilty as charged of inadequate support under the Act and in sentencing him to six months in jail, suspended on the payment of costs and $150 per month child support.\nAppeal by respondent from Matheson, Judge, 13 February 1973 Session of Catawba County District Court.\nThis action was instituted in the District Court of Catawba County on 29 January 1973 under the Uniform Reciprocal Enforcement of Support Act, G.S. Chap. 52A, upon receipt of a transmittal letter from the District Attorney of Muscogee County, Georgia, accompanied by the following petition:\n\u201cPetition foe Support (Filed Jan. 29, 1973)\nUniform Support of Dependents Act (sic)\n(Georgia Laws 1958, page 34)\nState of Georgia | County of Muscogee J\nTo The Superior Court of The County of Muscogee:\nThe Petition Of Marie C. Childers respectfully shows:\n1. That she is the wife of Dwain A. Childers (legally separated), the Respondent; that Petitioner was duly married to said Respondent on or about Sept. 18, 1966 In the State of North Carolina and now resides at 909 Farr Rd. Apt. # 51, Columbus, Ga.\n2. That Petitioner is the mother and said Respondent is the father of the following named dependent:\n1. Dawn Amber Childers, Born Oct. 22, 1969\n3. That Petitioner and said child (is) (-are-) in need of and (is) (ase) entitled to support from the Respondent under the provisions of the Uniform Support of Dependents Act (sic) (Ga. Laws 1958, page 34), a copy of which is attached and made a part hereof.\n4. That Respondent, on or about Oct. 6, 1971 and subsequent thereto, refused and neglected to provide fair and reasonable support for Petitioner and other dependent according to his means and earning capacity;\nPetitioner needs more money. Respondent sometimes deducts from support, has skipped a few payments. Respondent would not cooperate with the attorney in North Carolina when appointments etc. were made.\n5. That, upon information and belief, Respondent now is residing or domiciled at Rt. 6, Box 351, Hickory, North Carolina which State has enacted a law substantially similar and reciprocal to the Uniform Support of Dependents Act (sic).\nWherefore, the Petitioner prays for such an Order for Support, directed to said Respondent, as shall be deemed fair and reasonable, and for such other and further relief as the law provides.\ns/ E. Mullins Whisnant\nPetitioner\u2019s Representative\nSolicitor General CJC\nCourthouse\nColumbus, Georgia\n(Verified by Marie C. Childers on Jan. 17, 1978).\u201d\nThe petition was transferred pursuant to an order entered in the following certificate:\n\u201cCertificate (Filed Jan. 29,1973)\nThe Undersigned, Judge of. the Superior Court of Muscogee County, State of Georgia, hereby certifies:\nThat on the 17th day of January, 1973,-a Petition was verified by the above named Petitioner and duly filed in this Court in a proceeding against the above named Respondent commenced under the provisions of the Uniform Support of Dependents Act (sic) (1958 Georgia Laws 34), to compel the support of the dependent named in the petition.\nThat in the opinion of the undersigned Judge, the petition sets forth facts from which it may be determined that the Respondent owes a duty of support, and that the State of North Carolina responding state, may obtain jurisdiction of Defendant or his property.\nWherefore, it is hereby Ordered that this certificate together with the exemplified copies of the Petition be transmitted to the Court, having jurisdiction of this case in County of Catawba, City of Hickory, State of North Carolina.\nDated January 17, 1973.\ns/ John H. Land\nJudge, Superior Court, C.J.C.\u201d\nAlso filed with the petition and certificate was a certified copy of the Uniform Reciprocal Enforcement of Support Act in effect in Georgia, Ga. Laws 1958 p. 34, and the sworn affidavit of petitioner in which she stated the following: that respondent\u2019s last child support payment was $40, received on 31 December 1972; that respondent by order of the court was required to pay $80 per month child support; that her earnings were $400 per month; that respondent\u2019s salary was approximately $950 per month; that her rent was $104.37 per month; and that she needed $150 per month for the room and board of her child.\nUpon receipt of the certified copy of the Georgia proceeding, notice was issued and served upon respondent, and a hearing was held before Judge Matheson, sitting without a jury, at which time petitioner\u2019s affidavit was read into evidence by her privately retained counsel. Respondent then testified that he and petitioner entered into a separation agreement on 6 October 1971 which gave custody of their minor child to petitioner and which required respondent to pay $80 per month child support, $40 on the 15th and $40 on the 30th of each month. Respondent further testified that he has always made these payments regularly and has never been in arrears. He also testified that his take-home pay is $784 per month with home expenses of $251.25 per month, $103.54 car payment each month, $92.09 in child support, life and hospitalization expenses for the child each month, and $267.37 for notes and personal bills. Respondent introduced the duly executed separation agreement into evidence by which he was required to pay $80 per month child support.\nUpon the conclusion of the hearing the trial judge entered the following judgment:\n\u201cJudgment or Other Disposition\nW. J. Houck, Atty. for Defendant\nThomas C. Morphis, Atty. for Plaintiff\nOffense: Reciprocal Support\nPlea: Not Guilty\nVerdict: Guilty\nJudgment of the Court is that the defendant\nJudgment is that the defendant be confined in the common jail of Catawba County for a period of 6 months to be assigned to work under the control and supervision of the State\nDepartment of Correction. This sentence suspended for 5 years with the consent of defendant in open court upon the following terms and conditions:\n(1) that the defendant pay the costs\n(2) that the defendant pay into the office of the Clerk the sum of $150.00 per week beginning February 15, 1973 for the support of the minor child.\nThis 13 day of February, 1973.\ns/ Joe K. Matheson\nPresiding Judge.\u201d\nPursuant to the above judgment, the trial judge entered an order on 16 February in which he stated the following:\n\u201c[I]t appearing to the Court that the defendant was guilty as charged of inadequate support under the Uniform Reciprocal Enforcement Support Act to his minor child, Dawn Amber Childers; and the Court finding as a matter of fact that the defendant is an able bodied man and has currently now take-home pay in the amount just under Seven Hundred Fifty ($750) Dollars per month and is, therefore, able to and should be required to pay One Hundred Fifty ($150.) Dollars per month for the support and maintenance of said minor child.\u201d\nFrom the above judgment and order, respondent appealed.\nAttorney General Morgan, by Deputy Attorney General Vanore, and Associate Attorney Reed, for petitioner appellee.\nCagle and Houck, by William J. Houck, for respondent appellant."
  },
  "file_name": "0220-01",
  "first_page_order": 244,
  "last_page_order": 250
}