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Hershey v. Hershey

Filed: June 15, 1982.

JAY DENNIS HERSHEY
v.
ROSELLA CANTWELL HERSHEY



Appeal by defendant from Phillips, Judge. Judgment entered 31 December 1980, District Court, Gaston County. Heard in the Court of Appeals 1 February 1982.

Morris, Chief Judge. Judges Vaughn and Martin (Harry C.) concur.

Morris

While it is true that the provisions of a valid separation agreement relating to marital and property rights of the parties cannot be set aside by the court without the consent of the parties, no agreement between husband and wife can serve to deprive

the courts of their inherent authority to protect the interests of and provide for the welfare of minor children. Childers v. Childers, 19 N.C. App. 220, 198 S.E.2d 485 (1973); and cases there cited; Rabon v. Ledbetter, 9 N.C. App. 376, 176 S.E.2d 372 (1970), and cases there cited. However, "where parties to a separation agreement agree concerning the support and maintenance of their minor children, there is a presumption, in the absence of evidence to the contrary, that the provisions mutually agreed upon are just and reasonable, and the court is not warranted in ordering a change in the absence of any evidence of a change in conditions." Rabon v. Ledbetter, at p. 379.

In the case before us, the court found, and there was no exception to the finding, that at the time of the separation, plaintiff had a gross salary of $20,000 per year, an expense account, and a company car and at the time of the hearing had a gross salary of $24,000 without an expense account or a company car. The court also found, and there is no exception to the finding, that the oldest child of the parties is now 18 years of age and a student in college. The court further found that defendant is employed full time and has a net income after taxes and insurance of approximately $127 per week. Upon these findings the court concluded that there had been no material change in circumstances with regard to the income of the plaintiff or defendant from the time of the execution of the separation agreement. Neither plaintiff nor defendant complains of this conclusion. Defendant does complain of the court's conclusion that "there has been a material change in circumstance with reference to the minor children in that Michael Hershey has become emancipated since the entry of the Separation Agreement." Defendant's position has merit and requires reversal of the court's order.

It is obvious that this so-called change in circumstances formed the sole basis for the court's order reducing the support payments from $700 per month as agreed to $525 per month, with the sum to be allocated as "$175.00 per minor child". The separation agreement clearly provided for the payment of $700 per month "which amount shall be payable until the youngest child attains the age of eighteen (18) years." There was no allocation of the sum to be paid.

Clearly a parent can obligate himself to support a child after emancipation and past majority, and the contract is enforceable, it

being beyond the inherent power of the court to modify absent the consent of the parties. Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964); Shaffner v. Shaffner, 36 N.C. App. 586, 244 S.E.2d 444 (1978); Carpenter v. Carpenter, 25 N.C. App. 235, 212 S.E.2d 911, cert. den., 287 N.C. 465, 215 S.E.2d 623 (1975); see also Lee, North Carolina Family Law, 4th Ed. ยง 151, pp. 235-36. There can be no question but that plaintiff here agreed to support his children -- all of them -- by the payment of $700 per month until the youngest reached eighteen. Clearly he had to know that the three oldest children would be past their majority by the time the youngest reached majority. The fact that the oldest child had reached eighteen was no change in circumstances. It was an eventuality recognized by plaintiff at the time he entered into the separation agreement. He then agreed that there would be no change in the amount of the monthly payment. He is bound by his agreement. The court erred in ordering a reduction of payment by reason of the fact that the oldest child had reached eighteen.

The record is barren of any evidence of any change in conditions warranting a change in the support payments to which plaintiff agreed in the separation agreement. The order entered must be modified in accordance with this opinion, but in all other respects, it is affirmed.

Modified and ...


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