Vanburen County Department of Social Services v. Swearengin , 118 N.C. App. 324 ( 1995 )

WALKER, Judge.

Plaintiff argues that a trial court only has jurisdiction to enforce defendant’s obligation of child support and thus the provision of the 28 June 1984 order which conditions child support payments on compliance with visitation rights is null and void. For this reason, plaintiff argues the trial court abused its discretion in denying her motion to set aside that provision and erred in dismissing plaintiff’s URESA action. We agree and thus reverse.

Our review of a trial court’s decision on a motion for relief under Rule 60(b) is limited to determining whether the court abused its discretion. City Finance Co. v. Boykin, 86 N.C. App. 446, 448, 358 S.E.2d 83, 84 (1987). Rule 60(b)(4) provides that a court may relieve a party from a judgment if it is void. N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) (1990). A void judgment is a nullity which may be attacked at any time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987). If a court has no jurisdiction over the subject matter, the judgment is void. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700, 702 (1976).

The issue before us was squarely addressed in Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700 (1976), a case with nearly identical facts. Pursuant to URESA, the plaintiff in Pifer enforced a Florida divorce decree which set forth defendant’s obligation of child support. The Florida decree granted plaintiff custody and set forth defendant’s visitation rights. The North Carolina court ordered defendant to pay child support, but also ordered that defendant shall be permitted to see his children at any reasonable time and on reasonable notice and that “[u]pon the first report by defendant to this Court that he has been denied such visits, all support payments herein ordered shall immediately cease.” Pifer, 31 N.C. App. at 486-487, 229 S.E.2d at 701-702. Subsequently, upon defendant’s report that plaintiff had refused visitation, the court entered ex parte orders terminating defendant’s obligation of support. Plaintiff appealed from the dismissal of her motion to set aside the ex parte orders. Id. at 487-88, 229 S.E.2d at 702.

This Court concluded that the duty of support is the only subject matter covered by URESA and that “[n]othing in the act allows the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases.” Id. at 489, 229 S.E.2d at 703. The court’s conclusion was based on N.C. Gen. Stat. § 52A-2 (1992), which provides that the purpose of URESA is “to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto,” and N.C. Gen. Stat. § 52A-13 (1992), which provides that “[i]f the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor . ...” Id. (emphasis added). The court stated that “the [trial court] in the responding State of North Carolina had jurisdiction only to determine whether the defendant owed a duty of support to his children in the initiating state ... and to enter an order requiring defendant to furnish such support.” Id. Since the trial court which entered the prior support order had “no jurisdiction whatsoever to condition the support payments upon certain visitation privileges for the defendant,” the Pifer court held that the subsequent ex parte orders were manifestly null and void and that the trial court erred in refusing to hear plaintiff’s motion to set those orders aside. Id.

This case illustrates how a child can become the “victim” within our system which is supposed to enforce child support from a parent. The District Court of Anson County should be aware that a parent has remedies to secure visitation privileges with a child even if the child resides in another state. As the Court stated in Pifer, “innocent children should not be deprived of support under these circumstances.” Id. at 490, 229 S.E.2d at 703.

Since we find this case indistinguishable from Pifer, we hold that the provision of the 28 June 1984 order which conditioned child support payments on plaintiff’s compliance with visitation rights is null and void for lack of subject matter jurisdiction. For this reason, we also hold that the trial court abused its discretion in denying plaintiffs Rule 60(b) motion and erred in dismissing plaintiffs action.

The case is remanded to the District Court of Anson County for enforcement of the Order of Child Support dated 27 June 1984 (84CVD31).

Reversed and remanded.

Judges EAGLES and McGEE concur.