{ "id": 4169449, "name": "CURTIS W. SMART, Plaintiff v. THE STATE OF NORTH CAROLINA, BY AND THROUGH THE ALBEMARLE CHILD SUPPORT ENFORCEMENT AGENCY, EX REL., NICOLE MARIE SMART, Defendant", "name_abbreviation": "Smart v. State ex rel. Albemarle Child Support Enforcement Agency", "decision_date": "2009-07-07", "docket_number": "No. COA08-1286", "first_page": "161", "last_page": "168", "citations": [ { "type": "official", "cite": "198 N.C. App. 161" } ], "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": "656 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640374 ], "year": 2008, "pin_cites": [ { "page": "720-21" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0716-01" ] }, { "cite": "658 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640674 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/658/0662-01" ] }, { "cite": "362 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640567 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/657/0669-02" ] }, { "cite": "652 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639686 ], "year": 2007, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0302-01" ] }, { "cite": "668 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642228 ], "year": 2008, "pin_cites": [ { "page": "584-85", "parenthetical": "reviewing Rule 12(b)(6) dismissal de novo" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0579-01" ] }, { "cite": "651 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639607 ], "year": 2007, "pin_cites": [ { "page": "389", "parenthetical": "reviewing summary judgment de novo" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0386-01" ] }, { "cite": "662 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641409 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "675", "parenthetical": "\"Generally, findings of fact are inappropriate where . . . the facts are not in dispute.\"" }, { "page": "677-78", "parenthetical": "citations and emphasis omitted" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0672-01" ] }, { "cite": "259 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552958 ], "year": 1979, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0507-01" ] }, { "cite": "328 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "602", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525363 ], "year": 1985, "pin_cites": [ { "page": "556", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0554-01" ] }, { "cite": "605 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411335 ], "year": 2004, "pin_cites": [ { "page": "347-48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0346-01" ] }, { "cite": "188 N.C. App. 806", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155993 ], "year": 2008, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0806-01" ] }, { "cite": "347 S.E.2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "24", "parenthetical": "emphasis added" }, { "page": "24" } ], "opinion_index": 0 }, { "cite": "317 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4773730 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "659-60" }, { "page": "660" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0652-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159238 ], "year": 2007, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0624-01" ] }, { "cite": "193 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161629 ], "year": 2008, "pin_cites": [ { "page": "491", "parenthetical": "reviewing Rule 12(b)(6) dismissal de novo" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0484-01" ] }, { "cite": "186 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157452 ], "year": 2007, "pin_cites": [ { "page": "428", "parenthetical": "reviewing summary judgment de novo" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0424-01" ] }, { "cite": "191 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159262 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "212", "parenthetical": "\"Generally, findings of fact are inappropriate where . . . the facts are not in dispute.\"" }, { "page": "216" }, { "page": "211-13" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0208-01" ] }, { "cite": "400 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "328 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541066 ], "year": 1991, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0254-01" ] }, { "cite": "586 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "357 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491698 ], "year": 2003, "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0471-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731", "parenthetical": "quoting N.C. [Gen. Stat.] \u00a7 1A-1, Rule 52(a)" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "96", "parenthetical": "quoting N.C. [Gen. Stat.] \u00a7 1A-1, Rule 52(a)" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "424 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506793, 2504075, 2504116, 2505493, 2506648 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0483-01", "/nc/332/0483-05", "/nc/332/0483-03", "/nc/332/0483-02", "/nc/332/0483-04" ] }, { "cite": "419 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "159" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313413 ], "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0574-01" ] }, { "cite": "580 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "723" }, { "page": "723", "parenthetical": "\"[Sjince the trial court was presented with affidavits and exhibits and did not exclude matters outside the pleadings, we treat the motion as one for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186998 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "263" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0261-01" ] } ], "analysis": { "cardinality": 750, "char_count": 17314, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13643420909867718 }, "sha256": "9c8e1bee495f248cfcd2f5b96d721420306f10b2ceb16629f2a8d17143b2f86b", "simhash": "1:5937446c7f5f2cc6", "word_count": 2855 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STEPHENS concur." ], "parties": [ "CURTIS W. SMART, Plaintiff v. THE STATE OF NORTH CAROLINA, BY AND THROUGH THE ALBEMARLE CHILD SUPPORT ENFORCEMENT AGENCY, EX REL., NICOLE MARIE SMART, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nThis case presents the sole question of whether the child support provision in a voluntary separation agreement which is incorporated into the final divorce decree can be judicially modified based solely on events occurring after execution of the separation agreement but before entry of the final divorce decree which incorporated the separation agreement. Because we answer negatively, we affirm.\nI. Background\nOn 21 October 1997, plaintiff enlisted in the United States Marine Corps (\u201cUSMC\u201d). Plaintiff (or \u201cHusband\u201d) and defendant Nicole Marie Smart (or \u201cWife\u201d) married on 29 January 2000. The parties separated on or about 1 June 2005.\nIn February 2006, the USMC gave Husband the option to deploy to Iraq. When he declined to deploy, the USMC confirmed his discharge date of 23 November 2006. After this date, he would not be allowed to re-enlist.\nOn 31 May 2006, Husband signed a marital separation agreement (\u201cthe agreement\u201d). The agreement was signed by Wife on 27 July 2006. The agreement provided, inter alia, that Husband would pay three-hundred twenty-six dollars ($326.00) to Wife every other week for child support. The agreement further provided \u201c[a]ll of the provisions of this Agreement shall be incorporated in any judgment or decree of divorce.\u201d\nOn 26 September 2006, Husband filed a verified complaint for divorce in Pasquotank County District Court. The complaint attached a copy of the agreement and stated \u201cthe parties previously entered into a Separation Agreement which addressed all issues pertaining to the dissolution of the marriage; paragraph 13 of said Agreement stated that the Separation Agreement would be incorporated into any subsequent decree of divorce.\u201d Husband moved for summary judgment on 16 November 2006.\nA hearing on the summary judgment motion was held on 11 December 2006. That same day, the trial court entered an order granting Husband an absolute divorce and decreed that the parties\u2019 marriage was dissolved. The order expressly incorporated the agreement and attached a copy.\nOn 15 December 2006, Husband filed a Motion and Notice of Hearing for Modification of Child Support Order. Husband\u2019s motion requested that his child support obligation as established by the incorporated separation agreement be reduced based upon a change in circumstances and alleged only his current unemployment as a change in circumstances. On 28 March 2007, Wife also filed a Motion and Notice of Hearing for Modification of Child Support Order. Wife\u2019s motion requested that the \u201cchild support agency be allowed to intervene and redirect child support through the child support enforcement agency\u201d but did not request any change in the amount. Wife\u2019s motion was heard on 20 April 2007. On 12 June 2007, the trial court entered an order allowing the State to intervene for the purpose of enforcement of the order. The order also directed Husband to pay child support in the amount of seven-hundred six dollars ($706.00) per month commencing 1 May 2007 and to pay an additional forty-four dollars ($44.00) per month as arrears.\nOn 28 June 2007, Husband filed a motion to set aside the 12 June 2007 order and also another motion to modify child support. The motion to modify alleged that Husband had been unemployed since leaving the USMC in November 2006 and requested the trial court \u201c[t]o enter an Order modifying the Plaintiffs child support obligation effective December 15, 2006[,]\u201d the date he had filed his original motion to modify child support.\nThe trial court scheduled a hearing on Husband\u2019s motions on 26 September 2007. At the hearing, Wife stipulated that the court should set aside the 12 June 2007 order and consider \u201cwhether or not [Husband was] entitled to a modification of his existing child support obligation.\u201d Wife also orally moved for dismissal of Husband\u2019s motion to modify child support. Husband\u2019s military discharge papers, showing a discharge date of 23 November 2006, were received as the only exhibit in the case. The trial court received no affidavits and heard no testimony at the hearing.\nOn 5 December 2007, the trial court entered an order setting aside the 12 June 2007 order. The trial court\u2019s 5 December 2007 order found that \u201c[i]n February 2006 plaintiff voluntarily chose not to reenlist with the [USMC]\u201d and concluded \u201c[t]here ha[d] not been a substantial change in circumstances since the entry of the December 11, 2006 Order which would justify the modification of plaintiff\u2019s child support obligation.\u201d Accordingly, the trial court denied Husband\u2019s motions of 15 December 2006 and 28 June 2007. Husband appeals.\nII. Standard of Review\nThe trial court\u2019s order purported to find facts and make conclusions of law based on those findings. However, there is \u201cconfusion in the record as to the procedural context of the trial court\u2019s action[,]\u201d Hensley v. Ray\u2019s Motor Co. of Forest City, Inc., 158 N.C. App. 261, 263, 580 S.E.2d 721, 723 (2003), so we must first discern the substance of husband\u2019s motion in order to determine the correct standard of review, id.; see also In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159 (\u201c[A] motion is treated according to its substance and not its label.\u201d), appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992).\nWhen the trial judge sits as the trier of fact on a motion to modify child support \u201cit must \u2018find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u2019 \u201d Koufman v. Koufman, 330 N.C. 93, 96, 408 S.E.2d 729, 731 (1991) (quoting N.C. [Gen. Stat.] \u00a7 1A-1, Rule 52(a)). On appeal the reviewing court \u201cevaluatfes] whether a trial court\u2019s findings of fact are supported by substantial evidence [and also] must determine if the trial court\u2019s factual findings support its conclusions of law.\u201d Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003).\nHowever, when a case is disposed of by summary judgment based on the undisputed facts, or by judgment on the pleadings based on the allegations of the pleadings taken as true, findings of fact are not necessary and are \u201cdisregarded on appeal.\u201d Sunamerica Financial Corp. v. Bonham, 328 N.C. 254, 261, 400 S.E.2d 435, 440 (1991); see also Devaney v. Miller, 191 N.C. App. 208, 212, 662 S.E.2d 672, 675 (2008) (\u201cGenerally, findings of fact are inappropriate where . . . the facts are not in dispute.\u201d). The reviewing court conducts a de novo review. Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 428, 651 S.E.2d 386, 389 (2007)(reviewing summary judgment de novo); Holleman v. Aiken, 193 N.C. App. 484, 491, 668 S.E.2d 579, 584-85 (2008) (reviewing Rule 12(b)(6) dismissal de novo).\nAt the 26 September 2007 hearing on husband\u2019s motion, wife orally moved to dismiss on the grounds that husband\u2019s \u201cmotions fail on their face\u201d because the sole allegation of a \u201cchange in circumstances,\u201d husband\u2019s discharge from the USMC, occurred before entry of the divorce decree. The trial court received one exhibit from husband at the hearing, his military discharge papers, and no other evidence appears in the record before us.\nBecause the trial court received husband\u2019s exhibit, the validity of which was not contested by wife, we will treat husband\u2019s motion as one for summary judgment and disregard the findings of fact. Hensley, 158 N.C. App. at 263, 580 S.E.2d at 723 (\u201c[Sjince the trial court was presented with affidavits and exhibits and did not exclude matters outside the pleadings, we treat the motion as one for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.\u201d) \u201cA trial court\u2019s grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.\u201d Sturgill v. Ashe Mem\u2019l Hosp., Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).\nIII. Analysis\nHusband\u2019s brief makes two arguments. First, he argues that his severance from the USMC was involuntary and could therefore be a proper basis to modify his child support obligation. Second, husband argues that\nwhen Plaintiff was discharged from the USMC in November [2006], his earnings stopped, but there was not a child support order from which to seek modification because the divorce had not occurred which incorporated the Agreement into the decree. Plaintiff ha[d] to wait until the Agreement was incorporated into the divorce decree to seek a modification. . . . The 11 December 2006 Order was the first child support order to be entered and it was only after that date that the Plaintiff could file a Motion to modify.\n. . . The facts that would support a modification of the child support order would be to compare the parties [\u2019] circumstances that existed at the time [the] Agreement was signed and the circumstances that existed when the Plaintiff filed his Motion to modify, not at the instant the Agreement was incorporated into the decree as Judge Cole\u2019s Order would require.\nWe disagree with husband as to his second issue and it is dispositive.\n\u201c[A]n order of a court of this State for support 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 . . . .\u201d N.C. Gen. Stat. \u00a7 50-13.7(a) (2007). When a party\u2019s sole ground for requesting a decrease in the amount of child support is a change in the party\u2019s income,\nabsent a showing of a change in the needs of the child, only a substantial and involuntary decrease in the non-custodial parent\u2019s income can justify a decrease in the child support obligation. All other changes in income must be accompanied by facts showing that the needs of the child have changed.\nDevaney, 191 N.C. App. at 216, 662 S.E.2d at 677-78 (citations and emphasis omitted). The date from which to measure the change in income is critical to ruling on a motion to modify child support. Id.\nThe question before us is which measuring date to use to determine if the husband had substantial and involuntary reduction in income: the date of the voluntary separation agreement which included a provision for child support, or the date of incorporation of the separation agreement into the final divorce decree. This question is answered by Cavenaugh v. Cavenaugh, 317 N.C. 652, 347 S.E.2d 19 (1986), a case on all fours with the case sub judice but which neither party cited. According to Cavenaugh:\nBy incorporating the separation agreement of the parties into the judgment of divorce the trial judge made that agreement an order of the court subject to modification on the basis of changed circumstances. However, defendant has presented no evidence that the circumstances of either party have undergone a material change subsequent to the incorporation of the separation agreement into the divorce decree. The changes which occurred in defendant\u2019s earnings and financial situation after the parties entered into the separation agreement, but before the \u00e1greement became an order of the court, are irrelevant since his obligations were purely contractual at that time. We hold that a separation agreement which has been incorporated into a judgment of the court may be modified by the court only upon a showing that the circumstances of the parties have changed subsequent to the date of incorporation. If defendant did not desire such a result, he was free not to enter into a separation agreement which provided that either party could request that it be made an order of the court by motion filed in the divorce action.\n317 N.C. at 659-60, 347 S.E.2d at 24 (emphasis added). Cavenaugh \u201cnote[d] the possibility that a trial judge, in the exercise of his equitable power, may be able to refuse to incorporate a separation agreement into the divorce decree if he finds that incorporation would be inequitable.\u201d 317 N.C. at 660, 347 S.E.2d at 24 n.1. However, in Cavanaugh, as here, \u201cthe parties [did] not raise[] this question and it is not before us.\u201d Id. In addition, we note that husband was the party who filed the divorce complaint which specifically requested incorporation of the separation agreement into the divorce decree and the party who requested the court to enter the summary judgment divorce decree which incorporated the agreement.\nHusband\u2019s allegation of a change in circumstances after the separation agreement was entered, but before the final divorce decree incorporating the separation agreement, was irrelevant to his motion to modify child support. 317 N.C. at 660, 347 S.E.2d at 24. The facts are not in dispute, and Husband does not allege any change in circumstances after the date the separation agreement was incorporated into the final divorce decree. The trial court did not err in using the date of the final divorce decree from which to measure a change in circumstances in concluding that there had been no change in circumstances.\nBecause this question is dispositive, we need not address whether severance from the USMC was a voluntary or involuntary reduction of income. Either way, his severance occurred prior to incorporation of the separation agreement into the divorce decree. Accordingly, the trial court\u2019s order disallowing modification of child support is affirmed.\nAffirmed.\nJudges JACKSON and STEPHENS concur.\n. The copy of Husband\u2019s 15 December 2006 motion appearing in the record has a large X through the clerk\u2019s date stamp. It was apparently returned to the husband by the Clerk of Court for reasons unclear from the record. Nevertheless, Wife conceded in open court that the motion was properly filed on 15 December 2006.\n. This amount of child support is the same as established by the incorporated separation agreement, but paid monthly instead of bi-weekly.\n. The motion to set aside was based upon the fact that Husband\u2019s original 15 December 2006 motion to modify had been \u201cunfiled\u201d and apparently returned to him by the office of the Clerk of Court, so it was not considered by the court at the 20 April 2007 hearing.\n. This problem often arises in domestic cases which are always tried before a judge without a jury, but are sometimes disposed of on summary judgment, see, e.g., Craddock v. Craddock, 188 N.C. App. 806, 813, 656 S.E.2d 716, 720-21 (2008), or a motion to dismiss, see, e.g., Devaney v. Miller, 191 N.C. App. 208, 211-13, 662 S.E.2d 672, 675 (2008).\n. The \u201cStatement of Organization of the Trial Court\u201d found in the record on appeal contains a list of five \u201cstipulations.\u201d However, a \u201cStatement of Organization of the Trial Court\u201d should only contain \u201ca statement identifying the judge from whose judgment or order appeal is taken, the session at which the judgment or order was rendered, or if rendered out of session, the time and place of rendition, and the party appealing!.]\u201d N.C.R. App. R 9(a)(1)(b). One purpose of the appellate rules, including Rule 9\u2019s direction as to the content of the record on appeal, is to \u201cfacilitate]] the reading and comprehension of large numbers of legal documents by members of the Court and staff.\u201d State v. Riley, 167 N.C. App. 346, 347-48, 605 S.E.2d 212, 214 (2004). We admonish counsel to closely adhere to Rule 9 in future appeals.\nFurthermore, the \u201cstipulations\u201d were not signed by the parties or their attorneys and were not made orally at the hearing, so they are not contained in the transcript. \u201cIf . . . oral stipulations are not reduced to writing it must affirmatively appear in the record that the trial court made contemporaneous inquiries of the parties at the time the stipulations were entered into[,]\u201d McIntosh v. McIntosh, 74 N.C. App. 554, 556, 328 S.E.2d 600, 602 (1985) (emphasis added), and \u201cbetter practice require[s] that. .. stipulations entered into by counsel at the pretrial stage be evidenced by a signed writing.\" Amick v. Shipley, 43 N.C. App. 507, 511, 259 S.E.2d 329, 331 (1979). Even assuming that the \u201cstipulations\u201d are properly a part of the record, they would be undisputed by definition, leaving no disputed facts for the trial court to \u201cfind.\u201d", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Lisa Bradley Dawson, for the State.", "The Twiford Law Firm, P.C., by Edward A. O\u2019Neal, for plaintiff-appellant." ], "corrections": "", "head_matter": "CURTIS W. SMART, Plaintiff v. THE STATE OF NORTH CAROLINA, BY AND THROUGH THE ALBEMARLE CHILD SUPPORT ENFORCEMENT AGENCY, EX REL., NICOLE MARIE SMART, Defendant\nNo. COA08-1286\n(Filed 7 July 2009)\n1. Child Support, Custody, and Visitation\u2014 support \u2014 motion to modify \u2014 treated as summary judgment\nA husband\u2019s motion to modify child support was treated as a motion for summary judgment, and the findings disregarded, where the trial court received an exhibit from the husband which was not contested by the wife.\n2. Child Support, Custody, and Visitation\u2014 support \u2014 motion to modify \u2014 change of circumstances between agreement and incorporation\nThe trial court did not err by using the date of a final divorce decree from which to measure a change in circumstances where plaintiff alleged a change in circumstances (discharge from the Marine Corps) after the separation agreement was entered but before the final divorce decree incorporating the separation agreement.\nAppeal by plaintiff from order entered 5 December 2007 by Judge J. Carlton Cole in Pasquotank County District Court. Heard in the Court of Appeals 12 March 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Lisa Bradley Dawson, for the State.\nThe Twiford Law Firm, P.C., by Edward A. O\u2019Neal, for plaintiff-appellant." }, "file_name": "0161-01", "first_page_order": 187, "last_page_order": 194 }