Childers v. Childers , 19 N.C. App. 220 ( 1973 )

198 S.E.2d 485 (1973) 19 N.C. App. 220

Marie C. CHILDERS
v.
Dwain A. CHILDERS.

No. 7325DC430.

Court of Appeals of North Carolina.

August 22, 1973.

Atty. Gen. Robert Morgan, by Deputy Atty. Gen. Andrew A. Vanore, Jr., and Associate Atty. Ann Reed, for petitioner appellee.

Cagle & Houck by William J. Houck, Hickory, for respondent appellant.

MORRIS, Judge.

Respondent's 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 "changed circumstances" 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 "responding state", which governs. G.S. § 52A-8. Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706 (1954).

In 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:

"An 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." (Emphasis added.)

The 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.

Also respondent contends that it was error for the trial court to find him "guilty as charged of inadequate support under the Uniform Reciprocal Enforcement of Support Act", and in sentencing him to six months in jail, suspended on the payment of costs and $150 per month child support.

"A proceeding under the Uniform Reciprocal Enforcement of Support Act is a civil proceeding `as in actions for alimony without divorce.' G.S. 52A-12." Cline v. Cline, 6 N.C.App. 523, 528, 170 S.E.2d 645, 649 (1969).

While a trial court of a "responding state" may punish a respondent for noncompliance with its orders "as is provided by law for contempt of the court", G.S. § 52A-15(3), 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.

An examination of the finding of facts contained in the trial judge's 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

Reversed.

BRITT and PARKER, JJ., concur.