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STORY v. STORY
Factual and Procedural Background
On July 16, 1937, plaintiff instituted an action for absolute divorce alleging one child, Mary Frances Story, then in the custody of the defendant, and prayed for an award of custody and an allowance for the child's support. On September 2, 1938, Polk Superior Court entered an order by consent awarding custody to the defendant and directing the plaintiff to pay $25 per month into the clerk's office "for the use and benefit, support and maintenance of herself and the offspring of the marriage," and retaining the cause for further orders. On September 3, 1938, a decree of absolute divorce was entered. Plaintiff later moved for modification; on April 9, 1941 the order was modified to award part-time custody to plaintiff with visitation. On August 11, 1941 defendant served notice of a motion for further modification. At a hearing in chambers on September 26, 1941, the trial judge awarded permanent custody to defendant and ordered plaintiff to pay $35 per month into the clerk's office "for the use and benefit of said Mary Frances Story." Plaintiff excepted and appealed. The judgment below was affirmed.
Legal Issues Presented
- Whether a consent order in a divorce action providing for custody and support of a child may be modified by the court subsequently upon motion.
- Whether the Superior Court had jurisdiction under C. S., 1664 to modify an order for the support of a child of the marriage in the husband's action for absolute divorce (as opposed to applying C. S., 1665 or 1667).
- Whether the original consent order's retention clause ("cause is retained for further orders") precluded subsequent modification by the court.
Arguments of the Parties
Appellant's Arguments
- The original order was a consent judgment and, therefore, not subject to modification by the court.
- The court was without jurisdiction to modify the order, relying on the language of C. S., 1665 and C. S., 1667 as interpreted in Silver v. Silver.
Appellee's Position
- Defendant moved for further modification seeking an increased allowance for the support of the child; the original order had retained the cause for further orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490 | Father is primarily liable for the support of his child both before and after divorce, even where custody is awarded to the mother. | Used to support the proposition that the father bears primary liability for the child's support. |
| Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144 | Upon institution of a divorce action the court acquires jurisdiction over any child born of the marriage and may determine custody and maintenance before or after final decree; C. S., 1664. | Relied on to affirm the court's jurisdiction under C. S., 1664 to decide custody and maintenance matters in the divorce action. |
| In re Albertson, 205 N.C. 742, 172 S.E. 411 | Parties may bind themselves by separate agreement or by a consent judgment, but cannot withdraw children from the protective custody of the court. | Cited to show that agreements between parents cannot deprive the court of its authority to protect children's interests. |
| Morris v. Patterson, 180 N.C. 484, 105 S.E. 25 | Parties may bind themselves by agreement or consent judgment (in context of family matters). | Referenced as support that parties can enter consent judgments, but such agreements do not defeat the court's protective jurisdiction over children. |
| Webster v. Webster, 213 N.C. 135, 195 S.E. 362 | Recognizes limits on parties' agreements as to children; cited among cases about consent judgments and the court's protective role. | Read as consistent with the court's conclusion that it retains authority over children's welfare despite parental agreements. |
| Latta v. Trustees, 213 N.C. 462, 196 S.E. 862 | The court's duty toward children of the State whose personal or property interests require protection. | Used to underscore that the child is not a party to parental agreements and the court must protect children's interests. |
| Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12 | (Earlier case addressing related matters; cited in contrast.) | Stated to be expressly overruled insofar as it conflicts with the present conclusion. |
| Silver v. Silver, 220 N.C. 191 | Interprets C. S., 1665 and 1667 (as relied upon by appellant). | Distinguished: the court held this was not an action under C. S., 1667 and that the appellant's reliance on that interpretation was without merit because jurisdiction rested on C. S., 1664. |
Court's Reasoning and Analysis
The court first observed the original order expressly retained the cause "for further orders upon proper notice." It noted the original consent order required payments "for the use and benefit, support and maintenance" of the wife and child, whereas the later order awarded support for the child only. The court applied the principle that the father is primarily liable for his child's support (citing Sanders v. Sanders). It invoked C. S., 1664 and authorities (Tyner v. Tyner; Sanders) to conclude that upon institution of the divorce action the court acquired jurisdiction over the child and could determine custody and maintenance either before or after the final decree. The court held that parents cannot, by agreement or consent judgment, withdraw children from the court's protective jurisdiction (citing In re Albertson; Webster; Morris; Latta), so even a consent judgment is subject to the court's continuing authority regarding children's welfare. Because the original order retained the cause for further orders, the plaintiff was bound by that retention clause and could not challenge the court's authority to modify the order. The court distinguished the appellant's reliance on C. S., 1665 and 1667 and Silver v. Silver, stating the present proceeding rested on C. S., 1664 and was not governed by C. S., 1667. Finally, the court noted Webster v. Webster was consistent with its conclusion and overruled Lentz v. Lentz insofar as Lentz conflicted with this decision.
Holding and Implications
Affirmed.
Holding: The trial court properly exercised jurisdiction under C. S., 1664 to modify the prior consent order and to award permanent custody to the defendant and require the plaintiff to pay $35 per month for the support of the child. The consent order's retention clause bound the plaintiff and did not bar modification.
Implications: The decision confirms that consent judgments concerning children do not oust the court's inherent and statutory authority to protect children's welfare and to modify support orders; Lentz v. Lentz is overruled insofar as it conflicts with this ruling. The direct effect was to increase the child's monthly allowance and to affirm permanent custody in the defendant; no broader limitation on the court's protective jurisdiction over children was recognized.
1. Parent and Child § 5 —
The father is primarily liable for the support of his child both before and after divorce, even where the custody of the child is awarded to the mother.
2. Divorce § 16 —
Upon institution of a divorce action the court acquires jurisdiction over any child born of the marriage and may hear and determine questions both as to the custody and as to the maintenance of such child either before or after final decree of divorce. C. S., 1664.
3. Same —
The inherent and statutory authority of the court to protect the interests and provide for the welfare of infants cannot be affected by agreement or consent judgment entered into by the child's parents in an action for divorce, and the court has jurisdiction to modify provisions for the support of a child of the marriage, even though such provisions are stipulated in a consent order entered in the divorce action.
4. Same: Judgments § 24 —
In the husband's action for absolute divorce, an order was entered by consent awarding the custody of the child of the marriage and stipulating that the husband pay a certain amount monthly for the support of the wife and child, and that the cause be retained for further orders. Thereafter decree of absolute divorce was entered. Held: By the very terms of the agreement the court retained jurisdiction, and had authority, upon the wife's subsequent motion in the cause, to direct the husband to pay an increased amount for the support of the child alone.
5. Divorce § 16 —
The Superior Court has jurisdiction under C. S., 1664, to modify an order for the support of a child of the marriage entered in the husband's action for absolute divorce, and may do so upon the wife's motion in the cause made subsequent to the rendition of the decree of absolute divorce, C. S., 1665 and 1667 not being applicable.
Civil action for divorce heard on motion in the cause for an increased allowance for the support of an infant child of the marriage.
On 16 July, 1937, plaintiff instituted this action for divorce on the grounds of two years separation. In his complaint he alleged that one child was born of the marriage who was then in the custody of the defendant, and prayed the court that it, after due inquiry, "award the custody of said Mary Frances Story either to the plaintiff or the defendant," etc., and that the court "award such allowance for the support of said child as to the court may seem just and right, and within the means of the plaintiff to pay." The defendant answered and joined in the prayer that the court award the custody and provide for the maintenance of said infant.
On 2 September, 1938, during the August Term, 1938, Polk Superior Court, Pless, J., entered an order by consent of the parties awarding the custody of said child to the defendant subject to certain stipulations therein contained and directed that the plaintiff pay into the office of the Clerk of the Superior Court of Polk County $25.00 per month to be paid by the clerk to the defendant "for the use and benefit, support and maintenance of herself and the offspring of the marriage of the parties, which said amount shall be in payment of all liability and responsibility of the plaintiff to the defendant for said purpose." On 3 September, 1938, during the same term, judgment of divorce absolute, on issues duly answered by the jury, was entered.
Thereafter plaintiff made a motion in the cause for a modification of said order. This motion was heard 9 April, 1941, and the order was modified so as to award part time custody of said child to plaintiff and permit him to visit the child during the periods it was in the custody of the mother.
On 11 August, 1941, defendant served notice on the plaintiff of a motion for further modification of said order. This motion came on to be heard before Phillips, J., 26 September, 1941, in chambers at Rutherfordton, N.C. at which time plaintiff likewise moved for a modification thereof. Upon the hearing of this motion the judge below, after finding certain facts, awarded the permanent custody of the child to the defendant and ordered that the plaintiff pay into the office of the Clerk of the Superior Court of Polk County, "for the use and benefit of said Mary Frances Story the sum of $35 per month." The plaintiff excepted and appealed.
BARNHILL, J.
The only exception presented for consideration is the exception to the judgment. The plaintiff bottoms his assignment of error primarily upon the contention that the original order constituted a consent judgment of the parties and that by reason thereof it is not subject to modification by the court.
In the consideration of this assignment it must be noted in the beginning that the original order expressly provided that "this cause is retained for further orders upon proper notice." It must be further noted that while the original order provided that the stipulated payments were to be made "for the use and benefit, support and maintenance" of the defendant and the child, the last order, from which the plaintiff appealed, provided for payment for the support of the child only.
The father is primarily liable for the support of his child both before and after divorce, even where the custody of the child is awarded to the mother, Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490.
Upon the institution of a divorce action the court acquires jurisdiction over any child born of the marriage and may hear and determine questions both as to the custody and as to the maintenance of such child either before or after the final decree of divorce. C. S., 1664; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144; Sanders v. Sanders, supra.
No agreement or contract between husband and wife will serve to deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by separate agreement or by a consent judgment; In re Albertson, 205 N.C. 742, 172 S.E. 411; Morris v. Patterson, 180 N.C. 484, 105 S.E. 25; Webster v. Webster, 213 N.C. 135, 195 S.E. 362; but they cannot thus withdraw children of the marriage from the protective custody of the court. In re Albertson, supra; Tyner v. Tyner, supra. The child is not a party to such agreement and the parents cannot contract away the jurisdiction of the court which is always alert in the discharge of its duty toward its wards — the children of the State whose personal or property interests require protection. Latta v. Trustees, 213 N.C. 462, 196 S.E. 862. In such case the welfare of the child is the paramount consideration to which even parental love must yield, and the court will not suffer its authority in this regard to be either withdrawn or curtailed by any act of the parties.
Hence, even if we accept the contention of the plaintiff that the order constitutes a judgment by consent, the court below had full jurisdiction to hear the matter on the motion of the defendant and to make the order from which plaintiff appeals.
Furthermore, the plaintiff consented that the cause should be retained for further orders and decrees. He is bound by his own act. It does not now rest with him to challenge the authority of the court to modify the order in accord with the very terms of the agreement as thus expressed.
A careful reading of Webster v. Webster, supra, will disclose that the opinion in that case is not out of accord with our present conclusion. Lentz v. Lentz, 193 N.C. 742, 138 S.E. 12, in so far as it seems to conflict, is expressly overruled.
Plaintiff contends that the court was for a further reason without jurisdiction. He relies upon the language of C. S., 1665, and C. S., 1667, as interpreted by this Court in Silver v. Silver, 220 N.C. 191, and the cases therein cited. This contention is without merit. This is not an action under C. S., 1667. The authority of the court below rests in the language of C. S., 1664. Plaintiff raised the issue in his complaint. The plenary jurisdiction of the court was thereby invoked and was properly exercised.
The judgment below is
Affirmed.
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