Voss v. Summerfield

Court of Appeals of North Carolina

Voss v. Summerfield

336 S.E.2d 144, 77 N.C. App. 839, 1985 N.C. App. LEXIS 4389

CourtCourt of Appeals of North Carolina

DecidedNovember 19, 1985

Docket8526DC344

StatusPublished

Cited by2 cases

This text of 336 S.E.2d 144 (Voss v. Summerfield) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Voss v. Summerfield, 336 S.E.2d 144, 77 N.C. App. 839, 1985 N.C. App. LEXIS 4389 (N.C. Ct. App. 1985).

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Opinion

WELLS, Judge.

In his first assignment of error, defendant contends that the trial judge erred in concluding that defendant waived the right to receive child support from the plaintiff. We agree.

[N]o agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court.

Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963). The conclusion of law that defendant had waived his right to child support is therefore in error. It is stipulated by the parties, and the trial court’s judgment shows, that the court ruled on defendant’s motion to modify the consent order on the basis of the separation agreement’s effect on defendant’s rights. The motion was, as a result, denied without consideration of defendant’s evidence on the changed circumstances of the parties. This was error and the judgment must be reversed and the cause remanded for a hearing on the evidence and findings and conclusions arising on that evidence. See Ebron v. Ebron, 40 N.C. App. 270, 252 S.E. 2d 235 (1979).

It is important to note that on remand the defendant, as mov-ant, will have the burden of showing a “substantial change of circumstances affecting the welfare of the child” before the order may be modified. Id. Recognizably, defendant’s task is rendered more difficult by the existence of the separation agreement. A *841 valid separation agreement cannot be ignored or set aside by the court without the consent of the parties. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E. 2d 640, disc. rev. denied, 298 N.C. 305, 259 S.E. 2d 918 (1979). Deference due this agreement gives rise to the presumption, in the absence of evidence to the contrary, that the amount agreed upon is just and reasonable. See id.

Reversed and remanded.

Judges Arnold and Martin concur.

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WELLS, Judge.

In his first assignment of error, defendant contends that the trial judge erred in concluding that defendant waived the right to receive child support from the plaintiff. We agree.

[N]o agreement or contract between husband and wife will serve to deprive the courts of their inherent as well as their statutory authority to protect the interests and provide for the welfare of infants. They may bind themselves by a separation agreement or by a consent judgment, but they cannot thus withdraw children of the marriage from the protective custody of the court.

Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963). The conclusion of law that defendant had waived his right to child support is therefore in error. It is stipulated by the parties, and the trial court’s judgment shows, that the court ruled on defendant’s motion to modify the consent order on the basis of the separation agreement’s effect on defendant’s rights. The motion was, as a result, denied without consideration of defendant’s evidence on the changed circumstances of the parties. This was error and the judgment must be reversed and the cause remanded for a hearing on the evidence and findings and conclusions arising on that evidence. See Ebron v. Ebron, 40 N.C. App. 270, 252 S.E. 2d 235 (1979).

It is important to note that on remand the defendant, as mov-ant, will have the burden of showing a “substantial change of circumstances affecting the welfare of the child” before the order may be modified. Id. Recognizably, defendant’s task is rendered more difficult by the existence of the separation agreement. A *841 valid separation agreement cannot be ignored or set aside by the court without the consent of the parties. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E. 2d 640, disc. rev. denied, 298 N.C. 305, 259 S.E. 2d 918 (1979). Deference due this agreement gives rise to the presumption, in the absence of evidence to the contrary, that the amount agreed upon is just and reasonable. See id.

Reversed and remanded.

Judges Arnold and Martin concur.

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336 S.E.2d 144, 77 N.C. App. 839, 1985 N.C. App. LEXIS 4389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/voss-v-summerfield-ncctapp-1985.

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