I.In General

Constitutionality. —

This section, as amended, is not unconstitutional on grounds that it violates equal protection by preserving a dependent spouse’s right to alimony without at the same time preserving all other property rights incident to continuation of the marital status, as the equal protection clauses of the State and federal Constitutions prohibit denial of the equal protection of the laws to persons, not to rights. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728, 1979 N.C. App. LEXIS 2835 (1979).

Abolition of the defense of recrimination in a divorce action based on a year’s separation does not deprive a spouse who was married before such abolition of a vested property right under the due process clause of the federal Constitution or the “law of the land clause” of N.C. Const., Art. I, § 19. Nor does it deprive defendant husband of a vested property right as a tenant by the entirety without due process of law on grounds that it permits plaintiff wife to obtain a divorce from defendant and defeat defendant’s right upon wife’s death to become the sole owner of property held by the parties as tenants by the entirety. Sawyer v. Sawyer, 54 N.C. App. 141, 282 S.E.2d 527, 1981 N.C. App. LEXIS 2775 (1981).

This section is an indication of this State’s policy, as exhibited by legislation, that if the parties have lived separate and apart for one year, the marriage is no longer viable and is not worth saving. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

Purpose of Section. —

This section was enacted in order to enable a husband and wife to terminate their marriage without the sensationalism and public airing of dirty linen which necessarily accompany a divorce based on fault. Harrington v. Harrington, 22 N.C. App. 419, 206 S.E.2d 742, 1974 N.C. App. LEXIS 2346 , rev'd, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974).

This section creates an independent cause of divorce. Pickens v. Pickens, 258 N.C. 84 , 127 S.E.2d 889, 1962 N.C. LEXIS 632 (1962), overruled in part, Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Gray v. Gray, 16 N.C. App. 730, 193 S.E.2d 492, 1972 N.C. App. LEXIS 1813 (1972).

And Provides for “No Fault” Divorce. —

As to divorces grounded on a one-year separation of the parties, this State is a “no fault” jurisdiction; that is, a showing that the parties have achieved the required periods of residency and separation is all that is necessary to obtain a divorce in this State under this section. Morris v. Morris, 45 N.C. App. 69, 262 S.E.2d 359, 1980 N.C. App. LEXIS 2556 (1980).

Jurisdictional Requirements. —

Under this section, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years (now one year), and (2) the plaintiff, husband or wife, shall have resided in this State for a period of one year (now six months). These two requirements are jurisdictional, and if either one or the other of these elements does not exist, the court would not have jurisdiction to try the action and any decree rendered would be void. Henderson v. Henderson, 232 N.C. 1 , 59 S.E.2d 227, 1950 N.C. LEXIS 403 (1950).

Under this section, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years (now one year); and (2) the plaintiff, husband or wife, shall have resided in this State for a period of six months. The jurisdictional requirement as to residence under this section is met by allegation and proof of residence within this State for a period of six months next preceding the commencement of the action. Denson v. Denson, 255 N.C. 703 , 122 S.E.2d 507, 1961 N.C. LEXIS 660 (1961).

To obtain a divorce pursuant to this section, all that is required is proof that the parties have lived separate and apart for one year and that one of the parties has lived in this State for six months next preceding institution of the suit. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

Statute of Limitations Not Applicable to Actions for Absolute Divorce. —

Balancing the reasons for having statutes of limitation against this State’s public policy of endeavoring to maintain the marital state on the one hand and not denying divorce to parties who have demonstrated a ground for divorce on the other hand, the general, residuary statute of limitations, G.S. 1-56 , should not be applied to actions for absolute divorce under this section. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

Accrual of Cause of Action. —

Separation, as a ground for divorce, is a type of continuing offense. It begins on the date the parties physically separate with the requisite intention that the separation remain permanent, and the cause of action under this section accrues at the end of one year. However, the cause of action continues to accrue even after the one year period, so long as the parties remain “separate and apart” within the meaning of the statute. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

But, the cessation of sexual relations alone does not constitute separation. Lin v. Lin, 108 N.C. App. 772, 425 S.E.2d 9, 1993 N.C. App. LEXIS 180 (1993).

An interlocutory appeal to determine the date of separation for the purposes of equitable distribution was rightfully dismissed, as the parties had been separated for a period far in excess of one year and as the date of separation was irrelevant to the validity of the divorce. Stafford v. Stafford, 351 N.C. 94 , 520 S.E.2d 785, 1999 N.C. LEXIS 1159 (1999).

Proper Parties. —

The only persons who may bring an action for absolute divorce are those persons who are lawfully married to one another. Where there are children born to a marriage, it is neither proper nor necessary for them to be made parties to an action for divorce between their parents. Likewise, the only necessary parties in an action to set aside an absolute divorce decree after one spouse’s death are the surviving spouse and the personal representative of the deceased spouse. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163, 1979 N.C. App. LEXIS 3146 (1979).

Required Findings. —

The court erred in declaring the parties’ divorce decree void where the divorce decree at issue was “in all respects regular on [its] face” and the defendant was properly served; the court’s findings, required by this section, were found under the heading “Conclusions of Law” rather than under “Findings of Fact.” Dunevant v. Dunevant, 142 N.C. App. 169, 542 S.E.2d 242, 2001 N.C. App. LEXIS 47 (2001).

Applicability of G.S. 50-10 . —

The application to divorces under this section of the G.S. 50-10 requirement that the factual allegations supporting the divorce must be deemed denied requires a finding of the necessary facts. While it remains sound public policy not to allow the granting of such divorces on the pleadings, it would, nevertheless, appear that it would make good jurisprudential sense to clearly remove divorces under this section from the more cumbersome jury procedure and provide that all such cases be heard by the judge without a jury. Morris v. Morris, 45 N.C. App. 69, 262 S.E.2d 359, 1980 N.C. App. LEXIS 2556 (1980).

Allegations and Proof Sufficient to Entitle Plaintiff to Divorce. —

Where the complaint alleges, and there is evidence tending to show, that husband and wife, “have lived separate and apart for two years (now one year)” next immediately preceding the institution of the action, and that plaintiff “has resided in the State for a period of six months,” nothing else appearing, the establishment of these allegations by proof would entitle plaintiff to a divorce. This section so provides. Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945).

It is unnecessary to set out in the complaint the cause of the separation or to allege that it was without fault on the part of plaintiff or to aver that it was by mutual agreement of the parties. Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945).

In order to be entitled to a divorce on the ground of separation, plaintiff must show the fact of marriage, that the parties have lived separate and apart for two years (now one year), and that plaintiff has been a resident of the State for one year (now six months). Oliver v. Oliver, 219 N.C. 299 , 13 S.E.2d 549, 1941 N.C. LEXIS 311 (1941).

Where, in an action under this section, the testimony adduced by plaintiff is sufficient to establish, at the commencement of the action, that the plaintiff and defendant were husband and wife, that both of them had resided in the State for a period of six months, and that they had lived separate and apart within the meaning of the statute for an uninterrupted period of two years (now one year), the trial judge rightly refused to nonsuit the action. Mallard v. Mallard, 234 N.C. 654 , 68 S.E.2d 247, 1951 N.C. LEXIS 518 (1951).

Complaint seeking an absolute divorce was not fatally defective in failing to allege that the parties lived separate and apart for one year with the intention by at least one of them that the separation be permanent, where it contained the allegations required by this section. Sharp v. Sharp, 84 N.C. App. 128, 351 S.E.2d 799, 1987 N.C. App. LEXIS 2458 (1987).

Trial court’s summary divorce judgment was not disturbed because it was uncontested that statutory residency and time requirements were met. Khaja v. Husna, 243 N.C. App. 330, 777 S.E.2d 781, 2015 N.C. App. LEXIS 813 (2015).

Joinder of Grounds in Complaint. —

Where the grounds are listed in the statutes for the same kind of divorce, the several grounds may be joined in one complaint, and the decree may be granted on any one of the grounds proved. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902, 1980 N.C. App. LEXIS 2831 (1980).

Statement in Answer. —

In an action under this section, it was held that the mere statement in the answer that the allegation in the complaint “that plaintiff and defendant have not lived together as man and wife since April 1, 1942, is not denied,” was not an admission of a “separation.” Moody v. Moody, 225 N.C. 89 , 33 S.E.2d 491, 1945 N.C. LEXIS 266 (1945).

Stay Not Required. —

A stay of plaintiff’s action for absolute divorce was not required pending resolution of defendant’s counterclaim for alimony in plaintiff’s earlier action for divorce from bed and board, since defendant’s claim for alimony, having been asserted in the prior action, would not be affected by an absolute divorce obtained by plaintiff in the action for absolute divorce. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728, 1979 N.C. App. LEXIS 2835 (1979).

When Issues to Be Passed on by Jury. —

In an action under this section, where the complaint alleged sufficient facts and defendant in her answer set up a divorce a mensa with alimony granted her on the grounds of abandonment, to which plaintiff replied without admission of wrongful or unlawful conduct on his part, a judgment for defendant on the pleadings was erroneous, as there were issues of fact raised to be tried by a jury. Lockhart v. Lockhart, 223 N.C. 123 , 25 S.E.2d 465, 1943 N.C. LEXIS 217 (1943).

When Plaintiff May Not Voluntarily Dismiss Claim. —

Where plaintiff seeks divorce upon the ground of one year’s separation and defendant in his answer likewise prays for a divorce upon the same ground, defendant’s prayer is in effect a counterclaim, and plaintiff therefore cannot voluntarily dismiss her claim without defendant’s consent. The rationale for this rule is that it would be manifestly unjust to allow a plaintiff who comes into court upon solemn allegations which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, ex parte, the allegations after defendant has demanded the relief to which they entitle him. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Estoppel from Challenging Divorce Judgment. —

Where husband filed for divorce and performed some of his obligations under separation agreement for several years, remarried in reliance on the divorce judgment, and did not object to the validity of the divorce decree or the agreement until he sought to defend his failure to comply with the judgment on grounds that it was void, he was estopped from questioning its validity and effect. Amick v. Amick, 80 N.C. App. 291, 341 S.E.2d 613, 1986 N.C. App. LEXIS 2181 (1986).

Modification of Custody Order in Action Under This Section. —

An order awarding the custody of minor children determines the present rights of the parties, but is not permanent in nature, and is subject to modification for subsequent change of circumstances affecting the welfare of the children; therefore, an order of the court, entered pursuant to former G.S. 50-16 , awarding the custody of the children to the wife, did not preclude another judge of the superior court from awarding custody of the children to the husband in the wife’s later action for absolute divorce under this section. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Child Support Action Not Barred. —

The inclusion in divorce judgment of a paragraph identifying plaintiff’s former husband as the father of plaintiff’s child operated only to identify the existence of a child born of the marriage and was not the subject of litigation; thus, collateral estoppel did not bar child support action against defendant. Guilford County ex rel. Child Support Enforcement Unit ex rel. Gardner v. Davis, 123 N.C. App. 527, 473 S.E.2d 640, 1996 N.C. App. LEXIS 695 (1996).

Evidence of Mental Impairment. —

In action for divorce based on one year’s separation where defendant wife asserted incurable mental illness as a defense, although plaintiff offered no expert evidence concerning the diagnosis of defendant’s condition, plaintiff’s own testimony showed defendant’s ability to perform usual daily tasks when her illness was controlled with medication; moreover, the testimony of defendant’s treating psychiatrist and the person most familiar with her condition over an extended period of time, corroborated certain of plaintiff’s evidence. Scott v. Scott, 336 N.C. 284 , 442 S.E.2d 493, 1994 N.C. LEXIS 232 (1994).

Mental Impairment. —

To bar an action for divorce based on one year’s separation, the mental impairment must be to such extent that defendant does not understand what he or she is engaged in doing and the nature and consequences of the act. Scott v. Scott, 336 N.C. 284 , 442 S.E.2d 493, 1994 N.C. LEXIS 232 (1994).

Trial court properly excluded evidence of defendant’s health and her prospects for obtaining medical insurance following divorce. Such evidence is not relevant to the trial court’s determination to grant or deny a divorce pursuant to this section. Fletcher v. Fletcher, 104 N.C. App. 225, 408 S.E.2d 753, 1991 N.C. App. LEXIS 996 (1991).

Alimony. —

When a husband was granted an absolute divorce on the grounds of separation for one year, and the wife did not file a counterclaim or separate claim for alimony before the trial court entered a judgment of absolute divorce, which did not preserve an alimony claim, a statement in the wife’s answer that “the claims for alimony and equitable distribution pending this action are to be reserved” was insufficient to give the trial court jurisdiction, under G.S. 50-11 , to consider the wife’s amended answer and counterclaim for alimony, despite the husband’s answer to that counterclaim, as subject matter jurisdiction could not be conferred by the parties’ consent. Stark v. Ratashara, 177 N.C. App. 449, 628 S.E.2d 471, 2006 N.C. App. LEXIS 962 (2006).

For cases decided under subdivisions (1) through (5) of former G.S. 50-5 , which formerly set forth various grounds for divorce, see Wood v. Wood, 27 N.C. 674 , 1845 N.C. LEXIS 176 (1845); Smith v. Morehead, 59 N.C. 360 , 1863 N.C. LEXIS 8 (1863); Edwards v. Edwards, 61 N.C. 534 , 1868 N.C. LEXIS 63 (1868); Barringer v. Barringer, 69 N.C. 179 , 1873 N.C. LEXIS 210 (1873); Horne v. Horne, 72 N.C. 530 , 1875 N.C. LEXIS 282 , dismissed, 72 N.C. 534 , 1875 N.C. LEXIS 283 (1875); Long v. Long, 77 N.C. 304 , 1877 N.C. LEXIS 8 6 (1877); McQueen v. McQueen, 82 N.C. 471 , 1880 N.C. LEXIS 276 (1880); Webber v. Webber, 83 N.C. 280 , 1880 N.C. LEXIS 61 (1880); Steel v. Steel, 104 N.C. 631 , 10 S.E. 707, 1889 N.C. LEXIS 248 (1889); House v. House, 131 N.C. 140 , 42 S.E. 546, 1902 N.C. LEXIS 254 (1902); Kinney v. Kinney, 149 N.C. 321 , 63 S.E. 97, 1908 N.C. LEXIS 351 (1908); Ellett v. Ellett, 157 N.C. 161 , 72 S.E. 861, 1911 N.C. LEXIS 26 (1911); Cooke v. Cooke, 164 N.C. 272 , 80 S.E. 178, 1913 N.C. LEXIS 47 (1913); Alexander v. Alexander, 165 N.C. 45 , 80 S.E. 890, 1914 N.C. LEXIS 213 (1914); Bryant v. Bryant, 171 N.C. 746 , 88 S.E. 147, 1916 N.C. LEXIS 158 (1916); Sanderson v. Sanderson, 178 N.C. 339 , 100 S.E. 590, 1919 N.C. LEXIS 454 (1919); Brown v. Brown, 182 N.C. 42 , 108 S.E. 380, 1921 N.C. LEXIS 170 (1921); Lee v. Lee, 182 N.C. 61 , 108 S.E. 352, 1921 N.C. LEXIS 175 (1921); Ellis v. Ellis, 190 N.C. 418 , 130 S.E. 7, 1925 N.C. LEXIS 91 (1925); Nelson v. Nelson, 197 N.C. 465 , 149 S.E. 585, 1929 N.C. LEXIS 270 (1929); Keys v. Tuten, 199 N.C. 368 , 154 S.E. 631, 1930 N.C. LEXIS 119 (1930); Reeves v. Reeves, 203 N.C. 792 , 167 S.E. 129, 1933 N.C. LEXIS 423 (1933); Smithdeal v. Smithdeal, 206 N.C. 397 , 174 S.E. 118, 1934 N.C. LEXIS 193 (1934); Hyder v. Hyder, 210 N.C. 486 , 187 S.E. 798, 1936 N.C. LEXIS 140 (1936); Burrowes v. Burrowes, 210 N.C. 788 , 188 S.E. 648, 1936 N.C. LEXIS 228 (1936); Woodruff v. Woodruff, 215 N.C. 685 , 3 S.E.2d 5, 1939 N.C. LEXIS 344 (1939); Young v. Young, 225 N.C. 340 , 34 S.E.2d 154, 1945 N.C. LEXIS 421 (1945); Pearce v. Pearce, 225 N.C. 571 , 35 S.E.2d 636, 1945 N.C. LEXIS 364 (1945); Pearce v. Pearce, 226 N.C. 307 , 37 S.E.2d 904, 1946 N.C. LEXIS 437 (1946); Welch v. Welch, 226 N.C. 541 , 39 S.E.2d 457, 1946 N.C. LEXIS 26 6 (1946); Smith v. Smith, 226 N.C. 544 , 39 S.E.2d 458, 1946 N.C. LEXIS 267 (1946); Norman v. Norman, 230 N.C. 61 , 51 S.E.2d 927, 1949 N.C. LEXIS 562 (1949); Cunningham v. Cunningham, 234 N.C. 1 , 65 S.E.2d 375, 1951 N.C. LEXIS 391 (1951); Mallard v. Mallard, 234 N.C. 654 , 68 S.E.2d 247, 1951 N.C. LEXIS 518 (1951); Carpenter v. Carpenter, 244 N.C. 286 , 93 S.E.2d 617, 1956 N.C. LEXIS 419 (1956); Becker v. Becker, 262 N.C. 685 , 138 S.E.2d 507, 1964 N.C. LEXIS 730 (1964); Wright v. Wright, 281 N.C. 159 , 188 S.E.2d 317, 1972 N.C. LEXIS 1043 (1972); Greene v. Greene, 15 N.C. App. 314, 190 S.E.2d 258, 1972 N.C. App. LEXIS 1912 (1972); Owens v. Owens, 28 N.C. App. 713, 222 S.E.2d 704, 1976 N.C. App. LEXIS 2806 (1976).

II.Separation

Editor’s Note. —

Many of the cases below were decided prior to the 1987 amendment to this section, providing that isolated incidents of sexual intercourse shall not toll the statutory period for divorce predicated on one year separation. As to resumption of marital relations, see G.S. 52-10.2 .

Parties Must Have Lived Separate and Apart for One Year. —

The material aspect of this statute is the requirement that the parties have lived separate and apart for one year prior to institution of the suit. Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476, 1983 N.C. App. LEXIS 2838 (1983).

The expression used in Byers v. Byers, 222 N.C. 298 , 22 S.E.2d (1942), “that the bare fact of living separate and apart for the period of two years (now one year); standing alone, will not constitute a cause of action for divorce,” should be viewed in the light of its setting, and construed accordingly. It was not intended as a delimitation of the statute. Byers v. Byers, 223 N.C. 85 , 25 S.E.2d 466, 1943 N.C. LEXIS 208 (1943).

Separation Requirement Applies to Year Prior to Institution of Suit. —

The requirement that parties live separate and apart for one year applies to the year prior to institution of the suit. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

The separation contemplated by this section is apparently unrestricted. Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945).

Mutual Agreement to Separate Is Not Required. —

A charge by the court to the jury that the living separate and apart means living separate and apart under mutual agreement only, was erroneous, entitling plaintiff to a new trial. Byers v. Byers, 222 N.C. 298 , 22 S.E.2d 902, 1942 N.C. LEXIS 86 (1942) (distinguishing Parker v. Parker, 210 N.C. 264 , 186 S.E. 346, 1936 N.C. LEXIS 75 (1936)) (decided under prior wording of section). See 15 N.C.L. Rev. 348 (1937).

In order to be entitled to a divorce, a plaintiff need not show that a marital separation for the statutory period was by mutual agreement or under a decree of court. Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355, 1972 N.C. App. LEXIS 2069 (1972).

Husband’s physical separation from his wife for the statutory one-year period of G.S. 50-6 and his accompanying intention to end the marriage were sufficient to entitle him to an absolute divorce, even though the wife did not know of his intention to end the marriage until less than a year before the husband filed for divorce; there was no requirement under G.S. 50-6 that the remaining spouse have knowledge of the other party’s intention to cease cohabitation. Smith v. Smith, 151 N.C. App. 130, 564 S.E.2d 591, 2002 N.C. App. LEXIS 676 (2002).

But Was Required Formerly. —

Before the 1937 amendment, which struck out of this section the phrase “either under deed of separation or otherwise,” it was held that while the applicant need not be the injured party, the statute did not authorize a divorce where the husband had separated himself from his wife, or the wife had separated herself from her husband, without cause and without agreement, express or implied. Lee v. Lee, 182 N.C. 61 , 108 S.E. 352, 1921 N.C. LEXIS 175 (1921); Parker v. Parker, 210 N.C. 264 , 186 S.E. 346, 1936 N.C. LEXIS 75 (1936); Hyder v. Hyder, 210 N.C. 486 , 187 S.E. 798, 1936 N.C. LEXIS 140 (1936); Reynolds v. Reynolds, 210 N.C. 554 , 187 S.E. 768, 1936 N.C. LEXIS 155 (1936).

This section contains no requirement that separation of the parties be voluntary. Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974). But see Williams v. Williams, 224 N.C. 91 , 29 S.E.2d 39, 1944 N.C. LEXIS 292 (1944) (holding that the separation under this section must be voluntary in its inception, and) Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945) (holding that “separation” would not include an involuntary living apart, where there had been no previous separation, such as might arise from the incarceration or insanity of one of the parties) .

But This Section Is Inapplicable Where Separation Is Due to Insanity of Defendant. —

Divorce on the grounds of two years’ (now one year’s) separation under this section cannot be maintained when the separation is due to the insanity or mental incapacity of defendant spouse, the sole remedy in such instance being under former G.S. 50-5(6) (recodified as G.S. 50-5.1 ). Lawson v. Bennett, 240 N.C. 52 , 81 S.E.2d 162, 1954 N.C. LEXIS 645 (1954); Moody v. Moody, 253 N.C. 752 , 117 S.E.2d 724, 1961 N.C. LEXIS 433 (1961).

To bar an action for divorce based on two years’ (now one year’s) separation, the mental impairment must be to such an extent that defendant does not understand what he or she is engaged in doing and the nature and consequences of the act. Moody v. Moody, 253 N.C. 752 , 117 S.E.2d 724, 1961 N.C. LEXIS 433 (1961).

“Judicial Separation” Included. —

A legal separation for the requisite period of two years (now one year) is ground for divorce under this section. The separation here contemplated includes a “judicial separation” as well as one brought about by the act of the parties, or one of them. Lockhart v. Lockhart, 223 N.C. 559 , 27 S.E.2d 444, 1943 N.C. LEXIS 322 (1943).

A separation by act of the parties, or one of them, or under order of court a mensa et thoro, suffices to meet the terms of this section. Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945).

The effect of a judgment granting a divorce a mensa et thoro was to legalize the separation of the parties which theretofore had been caused by the husband’s actions, and after two years (now one year) from the date of such judgment, the husband could proceed to an absolute divorce. Becker v. Becker, 262 N.C. 685 , 138 S.E.2d 507, 1964 N.C. LEXIS 730 (1964). See also, Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

The effect of a divorce a mensa et thoro obtained by the wife on the ground that her husband abandoned her, was to legalize their separation from the date of such judgment; and in such case the husband, after two years (now one year) from the date of such judgment, could proceed to an absolute divorce. Richardson v. Richardson, 257 N.C. 705 , 127 S.E.2d 525, 1962 N.C. LEXIS 594 (1962).

A judgment in an action instituted under former G.S. 50-16 decreeing that the husband had willfully abandoned the wife and awarding her support and maintenance constituted a judicial separation which, two years (now one year) thereafter, would permit the husband to obtain an absolute divorce. Rouse v. Rouse, 258 N.C. 520 , 128 S.E.2d 865, 1963 N.C. LEXIS 433 (1963); Wilson v. Wilson, 260 N.C. 347 , 132 S.E.2d 695, 1963 N.C. LEXIS 705 (1963).

The pendente lite order in the wife’s action for divorce from bed and board legalized the separation between the husband and wife, since it provided not only for alimony pendente lite and child custody, but also that the wife have the sole use and peaceful and undisturbed possession of the residence, and such separation having continued for the requisite one year thereafter, the plaintiff-husband became entitled to a divorce. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284, 1976 N.C. App. LEXIS 2474 (1976).

What Constitutes Legalized Separation. —

Either an action for a divorce a mensa et thoro, an action for alimony without divorce under former G.S. 50-16 , or a valid separation agreement may constitute a legalized separation which thereafter will permit either of the parties to obtain an absolute divorce on the ground of one year’s separation. Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974).

Valid separation agreement legalizes separation from and after the date thereof. Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974).

To be valid a separation agreement must be untainted by fraud, must be in all respects fair, reasonable and just, and must have been entered into without coercion or the exercise of undue influence, and with full knowledge of all the circumstances, conditions, and rights of the contracting parties. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Until deed of separation is rescinded, defendant cannot attack legality of separation or obtain alimony from plaintiff. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Effect of Resumption of Cohabitation upon Separation Agreement. —

When separated spouses who have executed a separation agreement resume living together in the home which they occupied before the separation, they hold themselves out as man and wife in the ordinary acceptation of the descriptive phrase. Irrespective of whether they have resumed sexual relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinds their separation agreement insofar as it had not been executed. Further, a subsequent separation will not revive the agreement. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

The same public policy which will not permit spouses to continue to live together in the same home, holding themselves out to the public as husband and wife, to sue each other for an absolute divorce on the ground of separation, or to base the period of separation required for a divorce on any time they live together, will also nullify a separation agreement if the parties resume marital cohabitation. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

The heart of a separation agreement is the parties’ intention and agreement to live separate and apart forever, and when a husband and wife enter into a deed of separation the policy of the law is that they are to live separate. Therefore, they void the separation agreement if they reestablish a matrimonial home. In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976).

Sexual intercourse between a husband and wife after the execution of separation agreement voids the contract. Murphy v. Murphy, 295 N.C. 390 , 245 S.E.2d 693, 1978 N.C. LEXIS 890 (1978). But see now G.S. 52-10.2 .

Where a reconciliation and resumption of cohabitation has taken place, an order or separation agreement with provisions for future support and an agreement to live apart is necessarily abrogated. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325, 1984 N.C. App. LEXIS 2843 (1984).

Grounds for Attacking Deed of Separation. —

A married woman may attack the certificate of her acknowledgment and privy examination respecting her execution of a deed of separation, inter alia, upon the grounds of her mental incapacity, infancy, or the fraud of the grantee. Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968).

Effect of Decree Denying Alimony. —

If a separation is legalized by an award of alimony without divorce, there is no sound reason why it should not also be legalized by a decree denying alimony based upon a finding of no dependency. In each case the court has considered and determined the respective rights and obligations of the separated parties insofar as support is concerned. In neither case is the court able to mend the broken marriage or to force the parties to live together if either persists in continuing to live apart. Cook v. Cook, 41 N.C. App. 156, 254 S.E.2d 261, 1979 N.C. App. LEXIS 2394 (1979).

The separation of the parties became legalized by the entry of the judgment which denied defendant alimony and by entry of the order which awarded her possession of the house. The parties having lived separate and apart for more than one year after their separation thus became legalized, plaintiff was entitled to maintain an action for an absolute divorce under this section. The adjudication made in the prior action that plaintiff had originally wrongfully abandoned the defendant was not effective as a bar in the later action. Cook v. Cook, 41 N.C. App. 156, 254 S.E.2d 261, 1979 N.C. App. LEXIS 2394 (1979).

Separation means cessation of cohabitation, and cohabitation means living together as man and wife, though not necessarily implying sexual relations. Cohabitation includes other marital responsibilities and duties. Dudley v. Dudley, 225 N.C. 83 , 33 S.E.2d 489, 1945 N.C. LEXIS 265 (1945); Young v. Young, 225 N.C. 340 , 34 S.E.2d 154, 1945 N.C. LEXIS 421 (1945); In re Estate of Adamee, 291 N.C. 386 , 230 S.E.2d 541, 1976 N.C. LEXIS 998 (1976); Tuttle v. Tuttle, 36 N.C. App. 635, 244 S.E.2d 447, 1978 N.C. App. LEXIS 2568 (1978).

Physical Separation Must Be Accompanied by Intention to Cease Cohabitation. —

A husband and wife live separate and apart for the prescribed period within the meaning of this section when, and only when, these two conditions concur: (1) They live separate and apart physically for an uninterrupted period of two years (now one year); and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation. Mallard v. Mallard, 234 N.C. 654 , 68 S.E.2d 247, 1951 N.C. LEXIS 518 (1951); Richardson v. Richardson, 257 N.C. 705 , 127 S.E.2d 525, 1962 N.C. LEXIS 594 (1962); Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355, 1972 N.C. App. LEXIS 2069 (1972).

The bare fact of living separate and apart for the period of two years (now one year), standing alone, will not constitute a cause of action for divorce. There must be at least an intention on the part of one of the parties to cease cohabitation, which must be shown to have existed at the time alleged as the beginning of the separation period. It must appear that the separation is with that definite purpose on the part of at least one of the parties. The exigencies of life and the necessity of making a livelihood may sometimes require that the husband shall absent himself from the wife for long periods, a situation which was not contemplated by the law as a cause of divorce in fixing the period of separation. Byers v. Byers, 222 N.C. 298 , 22 S.E.2d 902, 1942 N.C. LEXIS 86 (1942).

The words “separate and apart,” as used in this section, mean that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284, 1976 N.C. App. LEXIS 2474 (1976); Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476, 1983 N.C. App. LEXIS 2838 (1983).

Trial court did not err in finding a husband and wife were not separated at the time of the wife’s marital misconduct, as defined in G.S. 50-16.1 A(3)(a), thereby precluding an award of alimony to the wife under G.S. 50-16.3 A(a), because even though there was some physical separation of the parties after a choking incident involving the parties’ son, neither party expressed to the other they wanted to separate and the husband continued to maintain all of his belongings at the marital residence; although the phrase “the date of separation” as used in G.S. 50-16.3 A(a) was not defined, the phrase “separate and apart” as used in G.S. 50-6 meant there had to be a physical separation and an intention on the part of at least one of the parties to cease matrimonial cohabitation. Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308, 2011 N.C. App. LEXIS 2051 (2011).

Evidence of Conjugal Relations Within Statutory Period Before Action. —

Sexual relations between spouses separated for less than one year invalidates those obligations of the parties, pursuant to a separation agreement, that are contingent upon the requirement that the parties “live continuously separate and apart” for one year. Higgins v. Higgins, 86 N.C. App. 513, 358 S.E.2d 553, 1987 N.C. App. LEXIS 2736 (1987), aff'd, 321 N.C. 482 , 364 S.E.2d 426, 1988 N.C. LEXIS 106 (1988).

Evidence that within the statutory period before the institution of the divorce action defendant visited plaintiff at Army camp and plaintiff visited defendant on furloughs, and that at such times they cohabitated as man and wife, was sufficient to negative the conclusion that conjugal relations had ceased for the period prescribed by this section, and supported verdict in defendant’s favor and judgment denying plaintiff’s suit for divorce on the grounds of two years’ (now one year’s) separation. Mason v. Mason, 226 N.C. 740 , 40 S.E.2d 204, 1946 N.C. LEXIS 319 (1946) (decided prior to the 1987 amendment to this section) .

The discontinuance of sexual relations is not in itself a living “separate and apart” within the meaning of the statute, and a divorce will be denied where it appears that, during the period relied upon, the parties had lived in the same house. Dudley v. Dudley, 225 N.C. 83 , 33 S.E.2d 489, 1945 N.C. LEXIS 265 (1945).

Effect of Continuing Support of Spouse. —

This section does not contemplate, as essential, a repudiation of all marital obligations, and the fact that the husband has supported the wife will not defeat his action. Byers v. Byers, 222 N.C. 298 , 22 S.E.2d 902, 1942 N.C. LEXIS 86 (1942).

If a plaintiff in a divorce action on grounds of separation contributes to the support of his wife, solely in an attempt to fulfill the obligation imposed by statute, his conduct is not inconsistent with a legal separation; but if he makes such payments in recognition of his marital status and in discharge of his marital obligations, there is no living separate and apart within the meaning of the statute. Williams v. Williams, 224 N.C. 91 , 29 S.E.2d 39, 1944 N.C. LEXIS 292 (1944).

When Requirements for Valid Separation Not Satisfied. —

The law delineates two circumstances under which the law will hold spouses to have failed to satisfy the requirements of a valid separation: first, sexual activity between the parties, and, second, such association between the parties as to induce others to regard them as living together. Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393, 1980 N.C. App. LEXIS 3375 (1980) (decided prior to the 1987 amendment to this section) .

Casual and isolated social acts between separated spouses do not as a matter of law create a holding out as man and wife. Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393, 1980 N.C. App. LEXIS 3375 (1980).

Isolated or casual acts of sexual intercourse between separated spouses toll the statutory period required for divorce predicated on separation. Pitts v. Pitts, 54 N.C. App. 163, 282 S.E.2d 488, 1981 N.C. App. LEXIS 2787 (1981) (decided prior to the 1987 amendment to this section) .

Question of Resumption of the Conjugal Relation After Separation Is for Jury. See Reynolds v. Reynolds, 210 N.C. 554 , 187 S.E. 768, 1936 N.C. LEXIS 155 (1936).

Mutuality of Intent to Reconcile Is Essential Where Evidence Conflicts. —

When the evidence is conflicting, the issue of the parties’ mutual intent is an essential element in deciding whether the parties were reconciled and resumed cohabitation. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325, 1984 N.C. App. LEXIS 2843 (1984); Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, 1985 N.C. App. LEXIS 3697 (1985).

Separation May Not Be Based on Evidence Showing Cohabitation. —

For the purposes of obtaining a divorce under this section, separation may not be predicated upon evidence which shows that during the statutorily prescribed period the parties have cohabited as husband and wife. Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, 1985 N.C. App. LEXIS 3697 (1985).

Husband’s return to the marital home for a 10-day period, during which time he, inter alia, never had any sexual relations with his wife, was constantly looking for work, and did not otherwise represent himself to have resumed the marital relationship, did not constitute a resumption of marital cohabitation such as to invalidate the parties’ separation agreement and bar divorce on the grounds of living separate and apart for one year. Camp v. Camp, 75 N.C. App. 498, 331 S.E.2d 163, 1985 N.C. App. LEXIS 3697 (1985).

Resumption of the marital relation is not inherently secretive and spouses are competent to testify about it. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325, 1984 N.C. App. LEXIS 2843 (1984).

“Inclination and Opportunity” Rule Inapplicable to Proof of Resumption of Marital Relations. —

The “inclination and opportunity” concept allows a presumption of adulterous sexual intercourse if adulterous inclination and opportunity are shown. The rule applies only to cases of alleged adultery, because adultery is an illegal act which by its very nature is difficult to prove. Such justification of the rule for adultery cases is nonexistent for proof of resumption of marital relations between separated spouses, an act which is not against the law but which merely breaks a contract between the spouses. Williamson v. Williamson, 66 N.C. App. 315, 311 S.E.2d 325, 1984 N.C. App. LEXIS 2843 (1984).

Complaint must state a date of separation to establish the general time frame for divorce based on a year’s separation. Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476, 1983 N.C. App. LEXIS 2838 (1983).

III.Fault

Either party may secure an absolute divorce under this section, even though the applicant is the party who commits the wrong, as granting divorces is exclusively statutory and this is an independent act of the General Assembly. Long v. Long, 206 N.C. 706 , 175 S.E. 85, 1934 N.C. LEXIS 285 (1934); Byers v. Byers, 222 N.C. 298 , 22 S.E.2d 902, 1942 N.C. LEXIS 86 (1942).

Either party may bring an action for absolute divorce under this section, and the jury’s finding that defendant did not abandon plaintiff without cause did not preclude judgment in plaintiff’s favor. Campbell v. Campbell, 207 N.C. 859 , 176 S.E. 250, 1934 N.C. LEXIS 514 (1934).

Plaintiff Need Not Establish That He Is Injured Party. —

Where the husband sues the wife for an absolute divorce upon the ground of two years’ (now one year’s) separation under this section, he is not required to establish as a constituent element of his cause of action that he is the injured party. Pickens v. Pickens, 258 N.C. 84 , 127 S.E.2d 889, 1962 N.C. LEXIS 632 (1962), overruled in part, Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Overby v. Overby, 272 N.C. 636 , 158 S.E.2d 799, 1968 N.C. LEXIS 708 (1968).

In an action for absolute divorce under this section, the plaintiff need not allege and prove that he or she is an injured party. Earles v. Earles, 29 N.C. App. 348, 224 S.E.2d 284, 1976 N.C. App. LEXIS 2474 (1976).

Recrimination does not constitute a bar to plaintiff’s action for divorce based on one year’s separation. Smith v. Smith, 42 N.C. App. 246, 256 S.E.2d 282, 1979 N.C. App. LEXIS 2817 (1979).

For case discussing the elimination of the defense of recrimination based on former G.S. 50-5 by Session Laws 1977, c. 817, s. 1, effective Aug. 1, 1977, and recrimination based on G.S. 50-7 by Session Laws 1977, 2nd Sess., c. 1190, s. 1, effective June 16, 1978, see Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630, 1980 N.C. App. LEXIS 3200 (1980).

This section is a “no-fault” statute. Recriminatory defenses are not applicable. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

Where Action Is Brought After July 31, 1977. —

The defense of recrimination cannot be asserted in actions for absolute divorce instituted in this State after July 31, 1977, even if the alleged adulterous acts on the part of the plaintiff occurred after the separation of the parties. Edwards v. Edwards, 43 N.C. App. 296, 259 S.E.2d 11, 1979 N.C. App. LEXIS 3064 (1979).

Even If Acts Occurred Prior to July 31, 1977. —

Recrimination cannot be asserted as a defense in actions for absolute divorce based on a year’s separation brought after July 31, 1977. Therefore, since plaintiff’s action was begun on August 30, 1978, the defense of recrimination in the form of abandonment would not be available to defendant, even though the alleged abandonment occurred prior to the effective date of the statute. Boone v. Boone, 44 N.C. App. 79, 259 S.E.2d 921, 1979 N.C. App. LEXIS 3153 (1979).

But Recrimination Could Be Pleaded in Action Brought Prior to Amendment. —

Where husband filed action for divorce pursuant to this section on June 1, 1976, elimination of recriminatory defenses based on G.S. 50-7 by Session Laws 1977, 2nd Sess., c. 1190, s. 1, effective June 16, 1978, would not be applied retroactively so as to bar wife from pleading such defenses. Gardner v. Gardner, 48 N.C. App. 38, 269 S.E.2d 630, 1980 N.C. App. LEXIS 3200 (1980).

Defense of Recrimination Prior to Amendment of Section. —

For cases decided under the doctrine of recrimination, which allowed a defendant in a divorce action to set up as a defense in bar of plaintiff’s action that plaintiff was guilty of misconduct which in itself would have been a ground for divorce, prior to elimination of the defense of recrimination by the amendments to this section by Session Laws 1977, c. 817, s. 1, and Session Laws 1977, 2nd Sess., c. 1190, s. 1, see Reynolds v. Reynolds, 208 N.C. 428 , 181 S.E. 338, 1935 N.C. LEXIS 438 (1935); Hyder v. Hyder, 210 N.C. 486 , 187 S.E. 798, 1936 N.C. LEXIS 140 (1936); Byers v. Byers, 223 N.C. 85 , 25 S.E.2d 466, 1943 N.C. LEXIS 208 (1943); Pharr v. Pharr, 223 N.C. 115 , 25 S.E.2d 471, 1943 N.C. LEXIS 214 (1943); Taylor v. Taylor, 225 N.C. 80 , 33 S.E.2d 492, 1945 N.C. LEXIS 267 (1945); Welch v. Welch, 226 N.C. 541 , 39 S.E.2d 457, 1946 N.C. LEXIS 266 (1946); Richardson v. Richardson, 257 N.C. 705 , 127 S.E.2d 525, 1962 N.C. LEXIS 594 (1962); Edmisten v. Edmisten, 265 N.C. 488 , 144 S.E.2d 404, 1965 N.C. LEXIS 1020 (1965); Rupert v. Rupert, 15 N.C. App. 730, 190 S.E.2d 693, 1972 N.C. App. LEXIS 2015 , cert. denied, 282 N.C. 153 , 191 S.E.2d 759, 1972 N.C. LEXIS 913 (1972); Gray v. Gray, 16 N.C. App. 730, 193 S.E.2d 492, 1972 N.C. App. LEXIS 1813 (1972); Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Heilman v. Heilman, 24 N.C. App. 11, 210 S.E.2d 69, 1974 N.C. App. LEXIS 1918 (1974).

For cases as to defense of abandonment under this section prior to elimination of defense of recrimination, see Byers v. Byers, 223 N.C. 85 , 25 S.E.2d 466, 1943 N.C. LEXIS 208 (1943); Pharr v. Pharr, 223 N.C. 115 , 25 S.E.2d 471, 1943 N.C. LEXIS 214 (1943); Cameron v. Cameron, 235 N.C. 82 , 68 S.E.2d 796, 1952 N.C. LEXIS 328 (1952); McLean v. McLean, 237 N.C. 122 , 74 S.E.2d 320, 1953 N.C. LEXIS 484 (1953); Johnson v. Johnson, 237 N.C. 383 , 75 S.E.2d 109, 1953 N.C. LEXIS 530 (1953); Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957); Taylor v. Taylor, 257 N.C. 130 , 125 S.E.2d 373, 1962 N.C. LEXIS 562 (1962); Richardson v. Richardson, 257 N.C. 705 , 127 S.E.2d 525, 1962 N.C. LEXIS 594 (1962); Pickens v. Pickens, 258 N.C. 84 , 127 S.E.2d 889, 1962 N.C. LEXIS 632 (1962), overruled in part, Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); O'Brien v. O'Brien, 266 N.C. 502 , 146 S.E.2d 500, 1966 N.C. LEXIS 1374 (1966); Campbell v. Campbell, 270 N.C. 298 , 154 S.E.2d 101, 1967 N.C. LEXIS 1346 (1967); Overby v. Overby, 272 N.C. 636 , 158 S.E.2d 799, 1968 N.C. LEXIS 708 (1968); Eubanks v. Eubanks, 273 N.C. 189 , 159 S.E.2d 562, 1968 N.C. LEXIS 577 (1968); McLeod v. McLeod, 1 N.C. App. 396, 161 S.E.2d 635, 1968 N.C. App. LEXIS 1089 (1968); Rupert v. Rupert, 15 N.C. App. 730, 190 S.E.2d 693, 1972 N.C. App. LEXIS 2015 , cert. denied, 282 N.C. 153 , 191 S.E.2d 759, 1972 N.C. LEXIS 913 (1972); Harrington v. Harrington, 22 N.C. App. 419, 206 S.E.2d 742, 1974 N.C. App. LEXIS 2346 , rev'd, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Heilman v. Heilman, 24 N.C. App. 11, 210 S.E.2d 69, 1974 N.C. App. LEXIS 1918 (1974).

IV.Domicile or Residence

The six months residency requirement means the six months next preceding commencement of the action. Bruce v. Bruce, 79 N.C. App. 579, 339 S.E.2d 855, 1986 N.C. App. LEXIS 2097 (1986).

Separate Domicile for Wife. —

North Carolina divorce statutes recognize the legality of a separate domicile or residence for the wife. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492, 1969 N.C. App. LEXIS 1474 (1969).

To establish a domicile, there must be a residence and the intention to make it a home or to live there indefinitely. Bryant v. Bryant, 228 N.C. 287 , 45 S.E.2d 572, 1947 N.C. LEXIS 345 (1947).

Plaintiff must be physically present in this State and have the intention of making his residence here a permanent abiding place in order to be domiciled here within the meaning of this section, making residence in this State for six months a jurisdictional prerequisite to the institution of an action for divorce on the grounds of two years’ (now one year’s) separation. Bryant v. Bryant, 228 N.C. 287 , 45 S.E.2d 572, 1947 N.C. LEXIS 345 (1947).

The fact that a person obtains an automobile license and ration cards in another state, giving such state as his residence, while competent on the question of domicile, is not conclusive. Bryant v. Bryant, 228 N.C. 287 , 45 S.E.2d 572, 1947 N.C. LEXIS 345 (1947).

Finding of Court as to Residence. —

The finding of the court, supported by evidence, that plaintiff was physically present in this State for more than six months prior to instituting an action for divorce and that he regarded his residence here as a permanent home was sufficient to support a judgment denying defendant’s motion in the cause to set aside the divorce decree on the ground of want of the jurisdictional requirement of domicile. Bryant v. Bryant, 228 N.C. 287 , 45 S.E.2d 572, 1947 N.C. LEXIS 345 (1947).

District court properly exercised jurisdiction over the subject matter of the parties’ divorce action as in the State of North Carolina subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court’s finding residence by one of the parties for the requisite length of time and verification of the pleadings. In the case at issue, the plaintiff husband sufficiently alleged that he was a citizen and resident of North Carolina for more than six months next preceding the institution of the action and had lived separate and apart from the wife for more than one year next preceding the institution of the action without resuming the marital relationship, with those district court findings being supported by the husband’s verified complaint, which was treated as an affidavit. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653, 2008 N.C. App. LEXIS 1479 (2008).

How Decree Attacked on Ground of Nonresidence. —

The proper procedure to attack a divorce decree on the ground that plaintiff had not been a resident of the State for six months preceding the institution of the action is by motion in the cause. Bryant v. Bryant, 228 N.C. 287 , 45 S.E.2d 572, 1947 N.C. LEXIS 345 (1947).

Defect in Jurisdiction Held Insignificant Since Either Party Could Bring Proceeding. —

Although the court improperly found jurisdiction over defendant, this error was insignificant, in that this section allows a divorce proceeding on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570, 1983 N.C. App. LEXIS 3542 (1983).

OPINIONS OF ATTORNEY GENERAL

Incompetency Following Separation. — A plaintiff may pursue a divorce option under this section where, after the parties have separated, the defendant sustains injuries bringing into question his competency. G.S. 50-5.1 is not available in such a case. See opinion of Attorney General to Mr. James Lee Knight, Clerk of Superior Court, Guilford County, 55 N.C. Op. Att'y Gen. 82 (1986).

I.In General

A divorce from bed and board is nothing more than a judicial separation, that is, an authorized separation of husband and wife. Schlagel v. Schlagel, 253 N.C. 787 , 117 S.E.2d 790, 1961 N.C. LEXIS 449 (1961); Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69, 1978 N.C. App. LEXIS 2184 (1978).

Suit for divorce from bed and board is not exclusively a means for collection of alimony, but also a means of establishing a certain legal relationship. Long v. Long, 71 N.C. App. 405, 322 S.E.2d 427, 1984 N.C. App. LEXIS 3857 (1984).

Applicability of G.S. 50-10 . —

G.S. 50-10 applies to a divorce from bed and board under this section. Schlagel v. Schlagel, 253 N.C. 787 , 117 S.E.2d 790, 1961 N.C. LEXIS 449 (1961).

Finality. —

A divorce from bed and board is a final order. There is no such thing as a divorce from bed and board pendente lite. Kale v. Kale, 25 N.C. App. 99, 212 S.E.2d 234, 1975 N.C. App. LEXIS 2183 , cert. denied, 287 N.C. 259 , 214 S.E.2d 431, 1975 N.C. LEXIS 1093 (1975).

No Action for “No Fault” Divorce from Bed and Board. —

Where a husband and wife are living together and their children are in their joint custody and are being adequately supported by the supporting spouse, in the absence of allegations which would support an award of alimony or divorce, one spouse may not maintain an action to evict the other, get sole custody of the children, and obtain an order for child support; therefore, the trial court erred in denying defendant’s motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted, since the complaint attempted to assert, and the court allowed, what appeared to be a “no fault” divorce from bed and board, and such an action does not lie in this State. Harper v. Harper, 50 N.C. App. 394, 273 S.E.2d 731, 1981 N.C. App. LEXIS 2113 (1981).

No Requirement for Separation of Parties. —

There is no requirement for a separation of the parties in the sense of one moving out of the home before an action can be instituted and prosecuted under this section for divorce from bed and board. Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69, 1978 N.C. App. LEXIS 2184 (1978).

A wife may pursue an action for divorce from bed and board and alimony while her husband is staying in the same house with her. Triplett v. Triplett, 38 N.C. App. 364, 248 S.E.2d 69, 1978 N.C. App. LEXIS 2184 (1978).

Plaintiff Must Petition for Divorce a Mensa. —

A decree of divorce a mensa will not be granted in an action where plaintiff petitioned for absolute divorce. Morris v. Morris, 75 N.C. 168 , 1876 N.C. LEXIS 235 (1876).

Allegations in a cross action for divorce a mensa et thoro, set up by defendant wife in husband’s action for divorce, were held sufficient. Ragan v. Ragan, 214 N.C. 36 , 197 S.E. 554, 1938 N.C. LEXIS 261 (1938).

It is not necessary for the plaintiff to establish all of the grounds for divorce a mensa et thoro alleged in her complaint in order to sustain her action. It is sufficient if she establishes the defendant’s guilt of any of the acts that would constitute a cause of action for divorce from bed and board as enumerated in this section. Deaton v. Deaton, 234 N.C. 538 , 67 S.E.2d 626, 1951 N.C. LEXIS 500 (1951); Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

To obtain a divorce from bed and board the law requires that defendant establish only one of the grounds specified in this section. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

Failure to Establish Ground for Divorce. —

Where in his stipulation to the existence of ground for awarding alimony defendant did not specify which ground, of the ten enumerated in former G.S. 50-16.2 , existed to support an alimony award, plaintiff could not automatically assume that the ground stipulated was one of the five grounds also listed in this section. Thus, as she presented no evidence establishing one of the grounds in this section, plaintiff failed to meet her burden of proof as to this issue, and the trial court properly denied her request for a divorce from bed and board. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, 1987 N.C. App. LEXIS 2639 (1987).

Grounds Available to Husband as Well as Wife. —

The grounds for divorce a mensa given by this section are available to the husband as well as to the wife, or as stated by the express language of the statute, to “the injured party.” Brewer v. Brewer, 198 N.C. 669 , 153 S.E. 163, 1930 N.C. LEXIS 444 (1930); Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

Only the party injured is entitled to a divorce under this section. Vaughan v. Vaughan, 211 N.C. 354 , 190 S.E. 492, 1937 N.C. LEXIS 90 (1937). See also, Carnes v. Carnes, 204 N.C. 636 , 169 S.E. 222, 1933 N.C. LEXIS 219 (1933); Lawrence v. Lawrence, 226 N.C. 624 , 39 S.E.2d 807, 1946 N.C. LEXIS 294 (1946).

When the misconduct of the complaining party is calculated to and does reasonably induce the conduct of defendant relied upon in an action for divorce a mensa et thoro, he or she, as the case may be, will not be permitted to take advantage of his or her own wrong, and the decree of divorce will be denied. Byers v. Byers, 223 N.C. 85 , 25 S.E.2d 466, 1943 N.C. LEXIS 208 (1943); Pressley v. Pressley, 261 N.C. 326 , 134 S.E.2d 609, 1964 N.C. LEXIS 454 (1964).

Plaintiff Must Prove Unprovoked Misconduct by Defendant. —

To establish the existence of a ground listed in this section, plaintiff must allege and prove acts of misconduct by defendant and show that this misconduct was not provoked by plaintiff’s actions. Perkins v. Perkins, 85 N.C. App. 660, 355 S.E.2d 848, 1987 N.C. App. LEXIS 2639 (1987).

Effect of Delay in Bringing Action. —

An unreasonable delay by one party, after a probable knowledge of the criminal conduct of the other, will, if unaccounted for, preclude such party from obtaining a decree for a separation from bed and board. Whittington v. Whittington, 19 N.C. 64 , 1836 N.C. LEXIS 40 (1836).

But a delay of seven years in filing a petition was sufficiently accounted for by allegations that at the happening of the matters relied upon for divorce, the petitioner was a nonresident of the State, and was at the time of suit a pauper. Schonwald v. Schonwald, 62 N.C. 215 , 1867 N.C. LEXIS 37 (1867).

Evidence of Acts Occurring “More Than Ten Years Ago”. —

Where a wife sues her husband for divorce a mensa et thoro, under this section, it is not error to admit on the trial evidence of his misconduct occurring “more than ten years ago” when it is a part of the whole course of his dealings coming down to within six months of the beginning of the action. Page v. Page, 167 N.C. 346 , 83 S.E. 625, 1914 N.C. LEXIS 123 (1914).

Condonation is an affirmative defense to be alleged and proved by the party relying upon it, and less may be sufficient to destroy condonation than to found an original suit. Cushing v. Cushing, 263 N.C. 181 , 139 S.E.2d 217, 1964 N.C. LEXIS 797 (1964).

Resumption of Marital Relations as Condonation. —

Nothing else appearing, the resumption of marital relations after a separation imports a condonation of previous offenses. Cushing v. Cushing, 263 N.C. 181 , 139 S.E.2d 217, 1964 N.C. LEXIS 797 (1964).

Mere Forgiveness Does Not Establish Condonation. —

Evidence merely of forgiveness by the plaintiff, in her action for divorce a mensa et thoro against her husband, is insufficient to establish condonation. Page v. Page, 167 N.C. 346 , 83 S.E. 625, 1914 N.C. LEXIS 123 (1914); Jones v. Jones, 173 N.C. 279 , 91 S.E. 960, 1917 N.C. LEXIS 292 (1917).

Condonation is forgiveness upon condition, and the condition is that the party forgiven will abstain from like offenses afterwards. If the condition is violated, the original offense is revived. Lassiter v. Lassiter, 92 N.C. 129 , 1885 N.C. LEXIS 167 (1885); Cushing v. Cushing, 263 N.C. 181 , 139 S.E.2d 217, 1964 N.C. LEXIS 797 (1964).

Repetition of the offense nullifies the previous condonation. Collier v. Collier, 16 N.C. 352 , 1829 N.C. LEXIS 17 (1829); Gordon v. Gordon, 88 N.C. 45 , 1883 N.C. LEXIS 17 (1883); Page v. Page, 167 N.C. 346 , 83 S.E. 625, 1914 N.C. LEXIS 123 (1914).

Reconciliation Is Not a Defense to a Divorce from Bed and Board. —

A divorce from bed and board is judicial separation. Reconciliation while the action is pending is not a defense to a divorce from bed and board, unlike other concepts such as condonation, that is, the forgiveness of a marital offense constituting a ground for divorce. Howell v. Tunstall, 64 N.C. App. 703, 308 S.E.2d 454, 1983 N.C. App. LEXIS 3354 (1983).

But Resumption of Marital Relations Destroys Effect of Divorce. —

If the parties reconcile and resume cohabitation as man and wife after a divorce from bed and board is granted, the effect of the divorce from bed and board is destroyed. No court action to end such divorce is necessary. Howell v. Tunstall, 64 N.C. App. 703, 308 S.E.2d 454, 1983 N.C. App. LEXIS 3354 (1983).

A resumption of marital relations would invalidate a divorce a mensa et thoro. Rouse v. Rouse, 258 N.C. 520 , 128 S.E.2d 865, 1963 N.C. LEXIS 433 (1963).

Findings of Fact Required. —

In an action for divorce from bed and board under this section, the trial court should make adequate findings of facts (i.e. specific acts of misconduct) to support the conclusion of law that the noninjured party has (1) abandoned the family; (2) maliciously turned the other out of doors; (3) endangered the life of the other by cruel or barbarous treatment; (4) offered such indignities to the person of the other as to render his or her condition intolerable; or (5) become an excessive user of alcohol or drugs so that the other’s life is burdensome. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466, 1978 N.C. App. LEXIS 2557 (1978).

Judgment Invalid Without Finding of Grounds. —

Where judgment of divorce from bed and board contained absolutely no finding of the existence of any of the grounds for divorce from bed and board cognizable under this section, the district court was without power or authority, and therefore without jurisdiction, to enter it. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

Proceeding to set aside invalid divorce decree is not barred by death of one spouse where property rights are involved. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, 1987 N.C. App. LEXIS 2582 (1987).

Alimony. —

Where, in husband’s action for divorce a vinculo, the wife sets up a cross action for divorce a mensa, the court has the power to make an order for the payment of alimony upon the jury’s determination of the issues in favor of the wife. Norman v. Norman, 230 N.C. 61 , 51 S.E.2d 927, 1949 N.C. LEXIS 562 (1949).

In an action for divorce, a verified answer and cross action setting forth a cause of action for divorce a mensa is sufficient to sustain an order allowing alimony pendente lite. Nall v. Nall, 229 N.C. 598 , 50 S.E.2d 737, 1948 N.C. LEXIS 379 (1948).

Every ground for divorce from bed and board also serves as a ground for alimony. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

II.Abandonment

What Is Abandonment. —

One spouse abandons the other where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, 1980 N.C. App. LEXIS 2932 , aff'd, 301 N.C. 525 , 272 S.E.2d 1, 1980 N.C. LEXIS 1183 (1980); Roberts v. Roberts, 68 N.C. App. 163, 314 S.E.2d 781, 1984 N.C. App. LEXIS 3211 (1984).

Abandonment under this subdivision is not synonymous with the offense defined in G.S. 14-322 . Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

Abandonment under this subdivision is not synonymous with the criminal offense defined in G.S. 14-322 . In a prosecution under G.S. 14-322 , the State must establish (1) a willful abandonment and (2) a willful failure to provide adequate support. Richardson v. Richardson, 268 N.C. 538 , 151 S.E.2d 12, 1966 N.C. LEXIS 1249 (1966).

There is a distinction between criminal abandonment and the matrimonial offense of desertion. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138, 1971 N.C. App. LEXIS 1643 (1971).

It is not necessary that the husband should leave the State. Whitty v. Barham, 147 N.C. 479 , 61 S.E. 372, 1908 N.C. LEXIS 84 (1908).

Nor is it necessary for the husband himself to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him, which would constitute abandonment by the husband. Blanchard v. Blanchard, 226 N.C. 152 , 36 S.E.2d 919 (1946) holding evidence insufficient to show abandonment by husband Somerset v. Somerset, 3 N.C. App. 473, 165 S.E.2d 33, 1969 N.C. App. LEXIS 1604 (1969); Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

It is not necessary, to constitute abandonment of a wife by the husband, that he leave her, but he may constructively abandon her by treating her with such cruelty as to compel her to leave him. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, 1975 N.C. App. LEXIS 2417 , aff'd in part, modified, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

Continued and Persistent Cruelty or Neglect May Constitute Abandonment. —

If a husband, by continued and persistent cruelty or neglect, forces his wife to leave his home, he may himself be guilty of abandonment. Somerset v. Somerset, 3 N.C. App. 473, 165 S.E.2d 33, 1969 N.C. App. LEXIS 1604 (1969).

Sleeping in Separate Bedroom Is Not Abandonment. —

A husband who has neither left the marital home nor withheld support cannot be found to have abandoned his wife merely by electing to sleep in a separate bedroom. Oakley v. Oakley, 54 N.C. App. 161, 282 S.E.2d 589, 1981 N.C. App. LEXIS 2818 (1981).

Nor Is Separation by Mutual Agreement. —

Abandonment or desertion, as a marital wrong committed by one spouse against the other, does not occur if the parties live apart by mutual agreement. Sauls v. Sauls, 288 N.C. 387 , 218 S.E.2d 338, 1975 N.C. LEXIS 988 (1975).

When the complaining spouse has consented to a separation which was not caused by the other’s misconduct, the plaintiff cannot obtain a divorce or alimony on the basis of abandonment. Sauls v. Sauls, 288 N.C. 387 , 218 S.E.2d 338, 1975 N.C. LEXIS 988 (1975).

Unless Induced by Misconduct of One Spouse. —

Where the agreement to separate is induced by the misconduct of one spouse, the other can still maintain the charge of voluntary abandonment. Sauls v. Sauls, 288 N.C. 387 , 218 S.E.2d 338, 1975 N.C. LEXIS 988 (1975).

The consent which will bar divorce on grounds of abandonment is a positive willingness on the part of the complainant — a consent not induced by the misconduct of the other spouse — to cease cohabitation. Sauls v. Sauls, 288 N.C. 387 , 218 S.E.2d 338, 1975 N.C. LEXIS 988 (1975).

Not Mere Acquiescence in the Inevitable. —

Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary or affect the right to divorce or alimony. Nor, under such circumstances, is the innocent party obliged to protest or to exert physical force or other importunity to prevent the other party from leaving. Sauls v. Sauls, 288 N.C. 387 , 218 S.E.2d 338, 1975 N.C. LEXIS 988 (1975).

Abandonment imports willfulness and maliciously turning the spouse out of doors. Brooks v. Brooks, 226 N.C. 280 , 37 S.E.2d 909, 1946 N.C. LEXIS 438 (1946).

Plaintiff Must Prove That Abandonment Was Willful. —

Where wife sues husband for a divorce from bed and board upon the ground of abandonment under this section, she must prove as an essential part of her case that her husband has willfully abandoned her. Cameron v. Cameron, 235 N.C. 82 , 68 S.E.2d 796, 1952 N.C. LEXIS 328 (1952).

When Abandonment Is Justified. —

The Supreme Court, in applying the provisions of subdivision (1) of this section, has never undertaken to formulate any all-embracing definition or rule of general application respecting what conduct on the part of one spouse will justify the other in withdrawing from the marital relation, and each case must be determined in large measure upon its own particular circumstances. Ordinarily, however, the withdrawing spouse is not justified in leaving the other unless the conduct of the latter is such as would likely render it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect, and as would constitute ground in itself for divorce at least from bed and board. Caddell v. Caddell, 236 N.C. 686 , 73 S.E.2d 923, 1953 N.C. LEXIS 472 (1953).

Plaintiff Must Prove Absence of Justification. —

Where a spouse seeks to recover alimony on the grounds of abandonment, that spouse has the burden of proving each and every element of abandonment, including the absence of justification. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, 1980 N.C. App. LEXIS 2932 , aff'd, 301 N.C. 525 , 272 S.E.2d 1, 1980 N.C. LEXIS 1183 (1980).

The burden of proof upon a plaintiff alleging defendant’s abandonment is not to negate every possible justification for defendant-husband’s leaving, but rather to prove only the absence of conduct on her part which rendered it impossible for him to continue in the marriage. Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381, 1980 N.C. App. LEXIS 2932 , aff'd, 301 N.C. 525 , 272 S.E.2d 1, 1980 N.C. LEXIS 1183 (1980).

Withdrawal from Home May Be Abandonment Even If Support Is Paid. —

A husband may be deemed to have abandoned his wife within the meaning of subdivision (1) of this section, and so be liable for alimony, notwithstanding the fact that, after cohabitation is brought to an end, he voluntarily provides her with adequate support. Whether his withdrawal from the home, followed by such support, constitutes an abandonment which is ground for suit by the wife for divorce from bed and board, and therefore ground for suit by her for alimony without divorce, depends upon whether his withdrawal from the home was justified by the conduct of the wife. Schloss v. Schloss, 273 N.C. 266 , 160 S.E.2d 5, 1968 N.C. LEXIS 586 (1968) (decided under former G.S. 50-16 ).

A wife is entitled to her husband’s society and the protection of his name and home in cohabitation. The permanent denial of these rights may be aggravated by leaving her destitute or may be mitigated by a liberal provision for her support, but if the cohabitation is brought to an end without justification and without the consent of the wife and without the intention of renewing it, the matrimonial offense of desertion is complete. Richardson v. Richardson, 268 N.C. 538 , 151 S.E.2d 12, 1966 N.C. LEXIS 1249 (1966); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138, 1971 N.C. App. LEXIS 1643 (1971).

The husband’s willful failure to provide adequate support for his wife may be evidence of his abandonment of her, but the mere fact that he provides adequate support for her does not in itself negative abandonment. Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957); Richardson v. Richardson, 268 N.C. 538 , 151 S.E.2d 12, 1966 N.C. LEXIS 1249 (1966); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138, 1971 N.C. App. LEXIS 1643 (1971).

Defendant May Not Defeat Action by Making Voluntary Support Payments. —

A defendant may not abandon his wife and defeat an action under this section by making voluntary payments which he may abandon at will. Thurston v. Thurston, 256 N.C. 663 , 124 S.E.2d 852, 1962 N.C. LEXIS 522 (1962); Richardson v. Richardson, 268 N.C. 538 , 151 S.E.2d 12, 1966 N.C. LEXIS 1249 (1966).

Acts Held to Constitute Abandonment. —

Where a husband drives his wife from his house, or obtains her removal by stratagem, or withholds support from her while there, he is deemed to have abandoned her. Setzer v. Setzer, 128 N.C. 170 , 38 S.E. 731, 1901 N.C. LEXIS 361 (1901).

A husband who permitted and encouraged certain of his grown children to remain constantly at home in a drunken condition, and allowed them to curse, abuse, and harass his wife at all hours of the day and night, and who told his wife to get her things out of his house, was guilty of such cruel treatment toward his wife as to constitute an abandonment of her. Bailey v. Bailey, 243 N.C. 412 , 90 S.E.2d 696, 1956 N.C. LEXIS 346 (1956).

Allegations that plaintiff was compelled to leave her husband because of his willful failure and refusal to provide her with support and that his failure was without provocation on her part were sufficient to state a cause of action for alimony without divorce on the ground of abandonment. Brady v. Brady, 273 N.C. 299 , 160 S.E.2d 13, 1968 N.C. LEXIS 590 (1968).

Plaintiff simply moved out of his adjacent apartment and stopped supporting his wife at the same time defendant’s earnings ceased and she was entering hospital to undergo surgery; the parties lived together as husband and wife “in the usually accepted sense” until that time at which time plaintiff abandoned defendant. Lin v. Lin, 108 N.C. App. 772, 425 S.E.2d 9, 1993 N.C. App. LEXIS 180 (1993).

Finding of Constructive Abandonment Upheld. —

Where the record portrayed defendant as a busy professional who became so completely immersed in his work that, by his conduct, he effectively abandoned his wife and children; additionally, the findings of fact pointed to a pattern of behavior by defendant over a 20-year period where plaintiff was left to her own devices without defendant’s assistance in maintaining a family and rearing their children, and, although the court noted that at least 10 years earlier plaintiff wife had told defendant that she needed more of his time and attention and the situation improved somewhat thereafter, it improved only for a short time, these finding supported the court’s conclusion that the husband had constructively abandoned his wife. Ellinwood v. Ellinwood, 94 N.C. App. 682, 381 S.E.2d 162, 1989 N.C. App. LEXIS 626 (1989).

Instructions as to Burden of Proof Held Erroneous. —

In an action for alimony without divorce on the ground of abandonment, an instruction that the wife had the burden of showing that the husband’s separation from her was free of fault on her part and that she was blameless, was erroneous. Likewise, an instruction that plaintiff had the burden of proving that the defendant’s separation was wrongful, without charging upon what phase or phases of the evidence defendant’s separation would be wrongful, and without defining wrongful except in abstract terms, was insufficient. Caddell v. Caddell, 236 N.C. 686 , 73 S.E.2d 923, 1953 N.C. LEXIS 472 (1953).

Lapse of seven years from time of separation did not bar a cross action for divorce a mensa on the ground of constructive abandonment, or application for alimony pendente lite, either by laches or any statute of limitation. Nall v. Nall, 229 N.C. 598 , 50 S.E.2d 737, 1948 N.C. LEXIS 379 (1948).

Prior Action Under This Section Held to Abate Action under G.S. 50-6 . —

The pendency of a prior action by the wife for a divorce from bed and board upon the ground of abandonment under this section abated a subsequent action by the husband for an absolute divorce upon the ground of two years’ (now one year’s) separation under G.S. 50-6 . Cameron v. Cameron, 235 N.C. 82 , 68 S.E.2d 796, 1952 N.C. LEXIS 328 (1952).

Question of Custody. —

Whether mother abandoned father within the meaning of subdivision (1) of this section was not controlling on the question of custody. Kenney v. Kenney, 15 N.C. App. 665, 190 S.E.2d 650, 1972 N.C. App. LEXIS 2001 (1972).

III.Maliciously Turning Spouse Out

Subdivision (2) Is an Instance of Abandonment Under Subdivision (1). —

The ground for divorce a mensa given the wife under subdivision (2) of this section, because of being maliciously turned out of doors by her husband, is but an instance of wrongful abandonment provided by subdivision (1). Medlin v. Medlin, 175 N.C. 529 , 95 S.E. 857, 1918 N.C. LEXIS 106 (1918).

Adverse Ruling in Previous Action. —

A denial of alimony in an independent action for alimony without divorce brought by the wife on grounds that her husband maliciously turned her out of doors would conclude her upon her crossbill setting up the same matter in an action thereafter brought by her husband against her for divorce a vinculo. Medlin v. Medlin, 175 N.C. 529 , 95 S.E. 857, 1918 N.C. LEXIS 106 (1918).

IV.Cruel Treatment

Necessary Allegations Under Subdivisions (3) and (4). —

A wife, in alleging a cause of action for divorce from bed and board under subdivisions (3) and (4) of this section, must set out with particularity the wrongful acts of the husband upon which she relies and also that such acts were without adequate provocation on her part. Ollis v. Ollis, 241 N.C. 709 , 86 S.E.2d 420, 1955 N.C. LEXIS 441 (1955); Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

Allegation of actual physical violence is not required under subdivision (3) of this section. Pearce v. Pearce, 226 N.C. 307 , 37 S.E.2d 904, 1946 N.C. LEXIS 437 (1946).

Cruelty and indignities, like other matrimonial offenses, may be condoned. Cushing v. Cushing, 263 N.C. 181 , 139 S.E.2d 217, 1964 N.C. LEXIS 797 (1964).

Revival of Cause After Condonation. —

Much less cruelty or indignity is sufficient to revive a transaction occurring before the condonation, than to support an original suit for divorce. Lassiter v. Lassiter, 92 N.C. 130 (1885).

Acts Committed More Than 10 Years Before. —

A divorce would not be granted for cruel and barbarous treatment where it appeared that the acts complained of were committed more than 10 years before the commencement of the action, and in the meanwhile the parties had continued to reside together. O'Connor v. O'Connor, 109 N.C. 139 , 13 S.E. 887, 1891 N.C. LEXIS 181 (1891).

Illustrative Cases. —

The communication of an infectious disease by the husband to the wife was not sufficient ground under subdivision (3) of this section. Long v. Long, 9 N.C. 189 , 1822 N.C. LEXIS 41 (1822).

Whipping of wife held cause for divorce in Taylor v. Taylor, 76 N.C. 433 , 1877 N.C. LEXIS 281 (1877).

For further illustrative cases, see also Griffith v. Griffith, 89 N.C. 113 , 1883 N.C. LEXIS 193 (1883); Jackson v. Jackson, 105 N.C. 433 , 11 S.E. 173, 1890 N.C. LEXIS 249 (1890).

V.Indignities

Subdivision (4) Is Remedial. —

It would seem that the legislature purposely omitted to specify the particular acts of indignity for which divorces may in all cases be obtained. The matter is left at large under general words, thus leaving the courts to deal with each particular case and to determine it upon its own peculiar circumstances, so as to carry into effect the purpose and remedial object of the statute. Taylor v. Taylor, 76 N.C. 433 , 1877 N.C. LEXIS 281 (1877); Sanders v. Sanders, 157 N.C. 229 , 72 S.E. 876, 1911 N.C. LEXIS 37 (1911).

Nature of Indignities. —

To entitle a wife to a divorce from bed and board under subdivision (4) of this section, the indignity offered by the husband must be such as may be expected to seriously annoy a woman of ordinary sense and temper, and must be repeated or continued so that it may appear to have been done willfully and intentionally or at least consciously by the husband to the annoyance of the wife. Miller v. Miller, 78 N.C. 102 , 1878 N.C. LEXIS 180 (1878).

Facts in Each Case Are Determinative. —

The acts of the husband which will render the wife’s condition intolerable and her life burdensome so as to entitle her to a divorce a mensa are largely dependent on the facts in each particular case, including her station in life, temperament, state of health, habits and feelings. Sanders v. Sanders, 157 N.C. 229 , 72 S.E. 876, 1911 N.C. LEXIS 37 (1911).

Allegations and Proof. —

Under subdivision (4) of this section plaintiff must set out with particularity the language and conduct on the part of defendant relied upon, and must allege and prove that such acts were without adequate provocation on her part. Lawrence v. Lawrence, 226 N.C. 624 , 39 S.E.2d 807, 1946 N.C. LEXIS 294 (1946); Best v. Best, 228 N.C. 9 , 44 S.E.2d 214, 1947 N.C. LEXIS 522 (1947); Ollis v. Ollis, 241 N.C. 709 , 86 S.E.2d 420, 1955 N.C. LEXIS 441 (1955); Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957); Cushing v. Cushing, 263 N.C. 181 , 139 S.E.2d 217, 1964 N.C. LEXIS 797 (1964); Butler v. Butler, 1 N.C. App. 356, 161 S.E.2d 618, 1968 N.C. App. LEXIS 1078 (1968).

As to necessary allegations and proof under subdivision (4) of this section, see also Pearce v. Pearce, 225 N.C. 571 , 35 S.E.2d 636, 1945 N.C. LEXIS 364 (1945).

Plaintiff’s Innocence Must Be Shown — Generally. —

The complaint must aver, and facts must be found upon which it can be seen, that the plaintiff did not by her own conduct contribute to the wrongs and abuses of which she complains. White v. White, 84 N.C. 340 , 1881 N.C. LEXIS 86 (1881); Garsed v. Garsed, 170 N.C. 672 , 87 S.E. 45, 1915 N.C. LEXIS 455 (1915).

In a cross-action under this section, the omission of an allegation that plaintiff’s conduct was without provocation on defendant’s part was fatal. Pearce v. Pearce, 225 N.C. 571 , 35 S.E.2d 636, 1945 N.C. LEXIS 364 (1945).

In North Carolina, a party relying on subdivision (4) must not have provoked the “indignities” of which he complains. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287, 1985 N.C. App. LEXIS 3675 (1985).

Same — General Allegation Insufficient. —

It is essential that the plaintiff specifically set forth in her complaint the circumstances under which the violence was committed, what her conduct was, and especially what she had done to provoke such conduct on the part of her husband. A general allegation that such conduct was “without cause or provocation on her part” is insufficient. Everton v. Everton, 50 N.C. 202 , 1857 N.C. LEXIS 6 1 (1857); O'Connor v. O'Connor, 109 N.C. 139 , 13 S.E. 887, 1891 N.C. LEXIS 181 (1891); Martin v. Martin, 130 N.C. 27 , 40 S.E. 822, 1902 N.C. LEXIS 6 (1902).

Failure to Allege and Prove That Husband’s Accusations of Infidelity Were False. —

In an action for divorce a mensa et thoro and for subsistence, plaintiff alleged that defendant had repeatedly accused her of having sexual relations with her foster father and other men, and her evidence tended to show that all of the specific acts of abuse and misconduct complained of occurred in connection with this accusation. Plaintiff further alleged that she had been faithful and dutiful, and that defendant’s acts of abuse and misconduct were without provocation or justification, but did not specifically allege or testify that the accusation was false. It was held that defendant’s motion for judgment as of nonsuit should have been allowed, since even if the allegation denying provocation or justification was taken as denial of the charge of infidelity, plaintiff offered no testimony in support of such denial. Lawrence v. Lawrence, 226 N.C. 624 , 39 S.E.2d 807, 1946 N.C. LEXIS 294 (1946).

Admissible Evidence of Indignities. —

In plaintiff’s action for divorce from bed and board, the trial court did not err in admitting into evidence testimony concerning defendant’s use of pornographic material in the presence of the parties’ minor children, defendant’s refusal to provide educational support for one of the parties’ adult children, and defendant’s sexual advances upon the parties’ daughter, since such evidence was relevant to show the circumstances surrounding plaintiff’s claim that defendant’s acts constituted such indignities to plaintiff’s person that her condition was rendered intolerable and her life burdensome. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, 1981 N.C. App. LEXIS 2120 , cert. denied, 302 N.C. 634 , 280 S.E.2d 449, 1981 N.C. LEXIS 1266 (1981).

Grant of Divorce Reversed Where Husband’s Behavior Contributed to Wife’s Criticism and Accusations. —

In a divorce action under subdivision (4), the judge expressly concluded that the plaintiff-husband was not blameless and the judge’s findings compelled the conclusion that the husband’s conduct—rescue squad activities despite wife’s suspicions of unfaithfulness, public name calling—so contributed to his wife’s criticism and accusations and to the parties’ repeated arguments that the grant of divorce had to be reversed. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287, 1985 N.C. App. LEXIS 3675 (1985).

Illustrative Cases. —

Husband’s persistent charge of adultery against a virtuous wife, accompanied by a contemptuous declaration that she was no longer his wife and by abandonment of her bed, was such an indignity to wife’s person as would entitle her to a partial divorce and to alimony. Everton v. Everton, 50 N.C. 202 , 1857 N.C. LEXIS 61 (1857).

Where petitioner alleged that her husband had become jealous of her without cause, had shaken his fist in her face and threatened her, and had declared to her face and published to the neighborhood that the child with which she was pregnant was not his, that her condition from such treatment had become intolerable and her life burdensome, and that she had been compelled to quit his house and seek the protection of her father, it was held that she had set out enough to entitle her to alimony pendente lite. Erwin v. Erwin, 57 N.C. 82 , 1858 N.C. LEXIS 184 (1858).

Where a drunken husband cursed his wife and drove her from his house, and by demonstrations of violence caused her to leave the bedside of a dying child and seek safety and protection at a distance of several miles, this was sufficient cause for divorce under subdivision (4) of this section. Scoggins v. Scoggins, 85 N.C. 348 (1881).

A divorce from bed and board will be granted the wife if it is shown that the husband made foul and injurious accusations, refused to bed with wife, and denied that she was his wife. Green v. Green, 131 N.C. 533 , 42 S.E. 954, 1902 N.C. LEXIS 329 (1902).

When in an action by a wife for divorce a mensa there was evidence tending to show that plaintiff, in her married life, was free from blame and that defendant’s conduct was a long course of neglect, cruelty, humiliation, and insult, repeated and persisted in, it was sufficient to bring the cause within the words of subdivision (4) of this section, that defendant had offered “such indignities to [wife’s] person as to render her condition intolerable and her life burdensome.” Sanders v. Sanders, 157 N.C. 229 , 72 S.E. 876, 1911 N.C. LEXIS 37 (1911).

Allegations that husband had been living in adultery, had repeatedly avowed his loss of affection for and his desire to be rid of his wife, had ejected her from his bed, and had finally ordered her from his home, saying that he never intended to live with her again, stated a cause of action. Pearce v. Pearce, 226 N.C. 307 , 37 S.E.2d 904, 1946 N.C. LEXIS 437 (1946).

In plaintiff’s action for divorce from bed and board on the ground that defendant had inflicted such indignities upon her as to render her life burdensome, evidence was sufficient to enable the jury to find for plaintiff where it tended to show that at some time prior to 1969 defendant began sleeping and spending the majority of his time in the basement of the parties’ home, isolated from plaintiff; that upon moving into the basement, defendant withdrew from active participation in the resolution of familial and household problems; that defendant viewed hardcore pornographic material in his basement and permitted his minor children to view such material; that during 1973 and 1974 defendant requested that plaintiff indulge him in various unnatural sexual desires; and that subsequent to 1975 defendant was absent from the parties’ home every weekend and all holidays until September 24, 1976, when he left the home for good. Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, 1981 N.C. App. LEXIS 2120 , cert. denied, 302 N.C. 634 , 280 S.E.2d 449, 1981 N.C. LEXIS 1266 (1981).

As a ground for the divorce, the trial court did not err in finding that the wife subjected the husband to indignities that made the husband’s life burdensome and the husband’s condition intolerable under G.S. 50-7(4) ; there was evidence that the wife (1) was involved in an extramarital affair, (2) wrecked the marital home after being ordered to leave it, (3) twice had the husband removed after filing false domestic violence proceedings, (4) was physically violent to the husband, (5) left the husband on three occasions without telling the husband where she was going, and (6) did not return for three or four nights. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264, 2005 N.C. App. LEXIS 609 (2005).

VI.Excessive Use of Alcohol or Drugs

Allegations of Habitual Drunkenness. —

Allegations in complaint that defendant had been an habitual drunkard during the prior three years were sufficient to state a cause of action for divorce from bed and board under subdivision (5) of this section. Best v. Best, 228 N.C. 9 , 44 S.E.2d 214, 1947 N.C. LEXIS 522 (1947).

I.In General

No Conflict with G.S. 1A-1 , Rule 13(a). —

There is no conflict between the statutes dealing with procedure in divorce actions and G.S. 1A-1 , Rule 13(a). Rather, G.S. 1A-1 , Rule 13(a) superimposes an additional characteristic on certain kinds of counterclaims. Gardner v. Gardner, 294 N.C. 172 , 240 S.E.2d 399, 1978 N.C. LEXIS 1194 (1978).

The statutes dealing specifically with divorce actions do not prescribe a procedure for counterclaims different from that prescribed in G.S. 1A-1 , Rule 13(a). Gardner v. Gardner, 294 N.C. 172 , 240 S.E.2d 399, 1978 N.C. LEXIS 1194 (1978).

II.Complaint

Plaintiff Must Allege Material Facts Required by This Section. —

To allege a cause of action for divorce, a plaintiff, in addition to one or more of the grounds for divorce, must allege the additional material facts now required by this section. Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

Such Allegations Are Indispensable Constituent Elements of Cause of Action. —

The legal effect of the 1951 amendment to this section is that the allegations required to be set forth in the complaint are now indispensable constituent elements of plaintiff’s cause of action, and the facts so alleged must be established by the verdict of a jury. Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

The allegations required by this section are indispensable constituent elements of a divorce action and must be established either by the verdict of a jury or by a judge, as the pertinent statute may permit. Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975); Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569, 1983 N.C. App. LEXIS 2624 (1983).

Which Must Be Found True. —

All averments required by the statute must be both alleged in the complaint and found by the finder of fact to be true before a divorce judgment may be entered. Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

Statement in General Terms. —

The matters in the jurisdictional affidavit (now the complaint) in an action for divorce a mensa brought by the wife may be stated in general terms following the language of the statute. Sanders v. Sanders, 157 N.C. 229 , 72 S.E. 876, 1911 N.C. LEXIS 37 (1911); Jones v. Jones, 173 N.C. 279 , 91 S.E. 960, 1917 N.C. LEXIS 292 (1917).

Allegation of Six Months’ Prior Knowledge — Generally. —

The affidavit (now the complaint) must state that the action was not brought within six months from the time the plaintiff first acquired knowledge of the facts stated therein. Clark v. Clark, 133 N.C. 28 , 45 S.E. 342, 1903 N.C. LEXIS 7 (1903). See also, O'Connor v. O'Connor, 109 N.C. 139 , 13 S.E. 887, 1891 N.C. LEXIS 181 (1891); Green v. Green, 131 N.C. 533 , 42 S.E. 954, 1902 N.C. LEXIS 329 (1902).

Six months’ prior knowledge was formerly not required to be alleged in the complaint. Kinney v. Kinney, 149 N.C. 321 , 63 S.E. 97, 1908 N.C. LEXIS 351 (1908).

While, in an action for divorce a mensa, it is advisable that the pleading allege that the facts set forth therein as grounds for divorce had existed to complaint’s knowledge for at least six months prior to the filing of the pleading in accordance with the language of the statute, where the wife’s pleading in her cross-action for divorce a mensa alleged gross mistreatment of her by the husband, culminating in his locking her out of her home and ordering her away on a specified date more than six months prior to the filing of the pleading, with verification that the facts alleged therein were true to her own knowledge, her pleading would be held sufficient on this aspect. Pruett v. Pruett, 247 N.C. 13 , 100 S.E.2d 296, 1957 N.C. LEXIS 550 (1957).

Same — When Unnecessary. —

By Laws 1925, c. 93, this section was amended so that in cases where the cause for divorce is five years’ (now one year’s) separation, then the six months’ prior knowledge need not be alleged. Ellis v. Ellis, 190 N.C. 418 , 130 S.E. 7, 1925 N.C. LEXIS 91 (1925); Carpenter v. Carpenter, 244 N.C. 286 , 93 S.E.2d 617, 1956 N.C. LEXIS 419 (1956). See also, Smithdeal v. Smithdeal, 206 N.C. 397 , 174 S.E. 118, 1934 N.C. LEXIS 193 (1934).

Section Requires Complaint to Set Forth Certain Information as to Children. —

This section requires that in all divorce actions the complaint shall set forth the name and age of any minor child or children of the marriage, and that in the event there are no minor children of the marriage, the complaint shall so state. Jones v. Jones, 20 N.C. App. 607, 202 S.E.2d 279, 1974 N.C. App. LEXIS 2503 , cert. denied, 285 N.C. 234 , 204 S.E.2d 23, 1974 N.C. LEXIS 948 (1974).

Allegations of the names and ages of any children of a party seeking divorce in North Carolina are required by this section, in order that the court may protect the interests of such children if the parties have failed to do so. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

The obvious reason for this requirement is to bring to the attention of the court any minor children that might be affected by the divorce, to the end that the court will protect the interests of those children. Jones v. Jones, 20 N.C. App. 607, 202 S.E.2d 279, 1974 N.C. App. LEXIS 2503 , cert. denied, 285 N.C. 234 , 204 S.E.2d 23, 1974 N.C. LEXIS 948 (1974); Cobb v. Cobb, 42 N.C. App. 373, 256 S.E.2d 722, 1979 N.C. App. LEXIS 2834 (1979).

The reason for the requirement of this section for a pleading relating to minor children is not to establish jurisdiction. Cobb v. Cobb, 42 N.C. App. 373, 256 S.E.2d 722, 1979 N.C. App. LEXIS 2834 (1979).

Answer Constituting Counterclaim. —

Where the complaint in a suit for an absolute divorce alleged facts entitling either or both of the parties to the marriage to an absolute divorce, defendant’s answer admitting these allegations, together with his prayer for an absolute divorce on the same grounds, was in effect a counterclaim seeking affirmative relief and arising out of the same transactions alleged in the complaint. McCarley v. McCarley, 289 N.C. 109 , 221 S.E.2d 490, 1976 N.C. LEXIS 1223 (1976).

Proof Must Correspond to Allegations. —

As the allegations in a petition for divorce are directed by statute to be sworn to, it is more emphatically required in such a case than in others that the allegations and proofs should correspond; otherwise the court cannot decree a divorce. Foy v. Foy, 35 N.C. 90 , 1851 N.C. LEXIS 120 (1851); Young v. Young, 225 N.C. 340 , 34 S.E.2d 154, 1945 N.C. LEXIS 421 (1945).

III.Verification

In a divorce action a verification is required as an essential part of the complaint. The want of a proper verification is a fatal defect and a cause for dismissal of the action. Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569, 1983 N.C. App. LEXIS 2624 (1983).

Verification Must Be as Required. —

In an application for alimony pendente lite the affidavit and petition must be verified as required by this section. Clark v. Clark, 133 N.C. 28 , 45 S.E. 342, 1903 N.C. LEXIS 7 (1903). See also, Hopkins v. Hopkins, 132 N.C. 22 , 43 S.E. 508, 1903 N.C. LEXIS 219 (1903).

Verification of a pleading stating that it was “sworn and subscribed to” was not sufficient. Martin v. Martin, 130 N.C. 27 , 40 S.E. 822, 1902 N.C. LEXIS 6 (1902).

For case holding verification in substantial compliance with former G.S. 1-145 sufficient, see Bolin v. Bolin, 242 N.C. 642 , 89 S.E.2d 303, 1955 N.C. LEXIS 657 (1955).

In Accordance with G.S. 1A-1 , Rule 11. —

This section requires that for a complaint for divorce to be valid, it must be verified in accordance with G.S. 1A-1 , Rule 11, when it is filed. It is not sufficient to obtain verification before the complaint and summons are served on the defendant. Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569, 1983 N.C. App. LEXIS 2624 (1983).

Verification of Answer Setting Up Cross-Action. —

In husband’s action for divorce a vinculo, wife’s answer setting up a cross-action must be verified under this section, as a jurisdictional prerequisite, and when the answer is not so verified the granting of permanent alimony is erroneous. Silver v. Silver, 220 N.C. 191 , 16 S.E.2d 834, 1941 N.C. LEXIS 504 (1941).

Verification of Counterclaim. —

A decree of divorce was not improperly granted because of defective verification of defendant-husband’s pleadings, where the counterclaim in which the divorce was prayed for was verified, although the original pleadings were not. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902, 1980 N.C. App. LEXIS 2831 (1980).

An action for permanent alimony is a permissive counterclaim and is not required to be verified. Newsome v. Newsome, 43 N.C. App. 580, 259 S.E.2d 577, 1979 N.C. App. LEXIS 3116 (1979).

As to waiver of verification of subsequent pleadings, see Calaway v. Harris, 229 N.C. 117 , 47 S.E.2d 796, 1948 N.C. LEXIS 428 (1948).

Impeachment of Verification. —

Such uncertainties as plaintiff expressed under cross-examination as to the exact nature of his act in verifying a complaint afforded an insufficient basis to warrant impeachment of his verification. Accordingly, the court erred in allowing defendant’s motion to strike the verification and in dismissing plaintiff’s complaint. Skinner v. Skinner, 28 N.C. App. 412, 222 S.E.2d 258, 1976 N.C. App. LEXIS 2719 , cert. denied, 289 N.C. 726 , 224 S.E.2d 674, 1976 N.C. LEXIS 1377 (1976).

Effect of False Swearing on Decree. —

If a decree of divorce, regular in all respects on the face of the judgment roll, is obtained by false swearing, by way of pleading and of evidence, relating to the cause or ground for divorce, the decree is voidable but not void, and is immune from attack by either party to the divorce. Carpenter v. Carpenter, 244 N.C. 286 , 93 S.E.2d 617, 1956 N.C. LEXIS 419 (1956).

In an action for annulment of a marriage entered into between plaintiff husband and defendant wife following a decree of divorce in favor of defendant against her former husband, plaintiff, who had been married to defendant for six years, could not attack the divorce decree by alleging false swearing of defendant in regard to the ground or cause for divorce. Carpenter v. Carpenter, 244 N.C. 286 , 93 S.E.2d 617, 1956 N.C. LEXIS 419 (1956).

In an action for divorce the affidavit formerly required by this section in connection with the complaint was jurisdictional, and a complaint accompanied by a false statutory affidavit would be regarded as insufficient to empower the court to grant a decree of divorce; the correct procedure for relief against the decree would be by motion in the cause. Young v. Young, 225 N.C. 340 , 34 S.E.2d 154, 1945 N.C. LEXIS 421 (1945) (wherein the plaintiff was held to have practiced imposition upon the court) .

As to the affidavit formerly required by this section, see Holloman v. Holloman, 127 N.C. 15 , 37 S.E. 68, 1900 N.C. LEXIS 6 (1900); Nichols v. Nichols, 128 N.C. 108 , 38 S.E. 296, 1901 N.C. LEXIS 347 (1901); Johnson v. Johnson, 141 N.C. 91 , 53 S.E. 623, 1906 N.C. LEXIS 71 (1906); State v. Williams, 220 N.C. 445 , 17 S.E.2d 769, 1941 N.C. LEXIS 566 (1941), rev'd, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 1942 U.S. LEXIS 2 (1942).

IV.Residence and Domicile

Jurisdiction in divorce actions is conferred by statute. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

And Is Founded on Domicile. —

Judicial power to grant a divorce that is, jurisdiction strictly speaking, is founded on domicile. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

The domicile of one spouse within a state gives power to that state to dissolve a marriage wheresoever contracted. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

“Domicile” Defined. —

That place is properly the domicile of a person where he has his true permanent home and principal establishment, and to which he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

“Residence” has been interpreted to mean the equivalent of “domicile.” Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570, 1983 N.C. App. LEXIS 3542 (1983).

Residence and Intent Must Be Shown. —

To establish a domicile there must be a residence, and the intention to make it a home or to live there permanently or indefinitely. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

In order to establish a domicile, a party must make a showing of both actual residence in the new locality and the intent to remain there permanently. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570, 1983 N.C. App. LEXIS 3542 (1983).

The residence requirement in this section is jurisdictional. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, 1975 N.C. App. LEXIS 2417 , aff'd in part, modified, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

The requirement that one of the parties to a divorce action shall have resided in this State for a specified period of time next preceding the commencement of the action is jurisdictional. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

Residency for Six Months Required. —

In order to obtain a valid divorce in North Carolina, the plaintiff or defendant must have resided in this State for at least six months next preceding institution of the action for divorce. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, 1975 N.C. App. LEXIS 2417 , aff'd in part, modified, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

The period of residence in this section applies to an action for divorce from bed and board as well as to an action for absolute divorce. Eudy v. Eudy, 24 N.C. App. 516, 211 S.E.2d 536, 1975 N.C. App. LEXIS 2417 , aff'd in part, modified, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

But the residency requirement of this section is not applicable in an action for alimony without divorce. Eudy v. Eudy, 288 N.C. 71 , 215 S.E.2d 782, 1975 N.C. LEXIS 883 (1975).

A bona fide “residence,” necessary under statutes in order to confer jurisdiction in divorce proceedings, is within the legal meaning of the word “domicile,” that is, an abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492, 1969 N.C. App. LEXIS 1474 (1969).

“Residence” means actual residence, and prior to the 1949 amendment, which allows suit to be brought where defendant has been a resident of the State for six months, a nonresident wife in suing for divorce could not avail herself of the maxim that “her domicile was that of her husband,” where she had not actually satisfied the residence requirement. Schonwald v. Schonwald, 55 N.C. 367 , 1856 N.C. LEXIS 177 (1856).

Separate Domicile for Wife. —

North Carolina divorce statutes recognize the legality of a separate domicile, or residence, for the wife. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492, 1969 N.C. App. LEXIS 1474 (1969).

There is no logical, legal or equitable reason for allowing wife, whose misconduct has brought about the separation, to insist upon the legal fiction that her domicile follows that of her husband, and thereby to defeat his action for divorce brought in the jurisdiction in which she actually resides. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492, 1969 N.C. App. LEXIS 1474 (1969).

One need not be a citizen of the United States in order to establish residence or domicile within this State for purposes of divorce actions. Rector v. Rector, 4 N.C. App. 240, 166 S.E.2d 492, 1969 N.C. App. LEXIS 1474 (1969).

Effect of Temporary Removal. —

Where husband and wife establish a residence in this State, the wife, by leaving the State for a temporary purpose, without any intention of changing her residence, does not thereby lose her citizenship. Moore v. Moore, 130 N.C. 333 , 41 S.E. 943, 1902 N.C. LEXIS 70 (1902).

The domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur. Israel v. Israel, 255 N.C. 391 , 121 S.E.2d 713, 1961 N.C. LEXIS 609 (1961).

Naval officer was properly found to be domiciled in North Carolina where: (1) He had changed his voter registration from Pennsylvania to Guilford County, (2) He had filed a North Carolina income tax return for the year 1981, (3) He had changed his permanent address with the Navy to his father’s address in Greensboro as of August 1, 1981, (4) He had opened a bank account in Greensboro in August, 1981 and had maintained it since that time, (5) He had changed the registration of his motor vehicle from Pennsylvania to North Carolina and had paid North Carolina property taxes, (6) He had resided at his parents’ house whenever on leave from the Navy, and (7) He had severed all ties with the State of Pennsylvania. In short, plaintiff did everything possible to establish a residence in North Carolina. The transient nature of his career with the United States Navy prohibited him from doing anything further. Andris v. Andris, 65 N.C. App. 688, 309 S.E.2d 570, 1983 N.C. App. LEXIS 3542 (1983).

Residency Established Via Verified Complaint. —

District court properly exercised jurisdiction over the subject matter of the parties’ divorce action as in the State of North Carolina subject matter jurisdiction for divorce involves not only bringing the matter in the correct court, but also the court’s finding residence by one of the parties for the requisite length of time and verification of the pleadings. In the case at issue, the plaintiff husband sufficiently alleged that he was a citizen and resident of North Carolina for more than six months next preceding the institution of the action and had lived separate and apart from the wife for more than one year next preceding the institution of the action without resuming the marital relationship, with those district court findings being supported by the husband’s verified complaint, which was treated as an affidavit. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653, 2008 N.C. App. LEXIS 1479 (2008).

OPINIONS OF ATTORNEY GENERAL

Not Advisable for Attorney to Act as Notary and Verify Client’s Divorce Complaint. — It is not advisable for a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client. A divorce complaint which is not properly notarized is subject to dismissal. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C. Op. Att'y Gen. 35 (1988).

Not Advisable for Attorney to Act as Notary and Verify Client’s Divorce Complaint. — When one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also appear, and they could be prohibited under former G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as “of counsel” to the individual partner on the face of the complaint or answer. Therefore, such practice should be avoided, and as an attorney/notary who acts in this fashion proceeds at his own risk. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, 58 N.C. Op. Att'y Gen. 35 (1988).

I.In General

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 50-13 , which prior to its repeal in 1967 dealt with custody and maintenance of children in actions for divorce.

Applicability. —

The plain language of G.S. 50-13.2(b) is referring to the party who is absent or has relocated with or without the children because of an act of domestic violence; therefore, a mother’s claim that the trial court violated G.S. 50-13.2(b) failed because that language did not apply to the situation since the mother had not relocated due to an act of domestic violence, or, to the extent the language of the section could apply, it would apply to the father who had relocated to another country. Thus, the trial court was required not to weigh the father’s absence or relocation against him in determining custody or visitation. Jordao v. Jordao, 273 N.C. App. 543, 849 S.E.2d 317, 2020 N.C. App. LEXIS 690 (2020).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Jurisdiction. —

When a divorce action is instituted, the court acquires jurisdiction over the children born to the marriage, and may hear and determine questions as to the custody and maintenance of the children both before and after final decree of divorce. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967).

Custody Proceedings Are Continuing. —

There is no requirement that each successive custody hearing starts with a “clean slate” and that the court cannot rely on the record previously generated. To the contrary, custody proceedings generally are continuing in nature. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

A judgment awarding custody is based upon the conditions found to exist at the time it is entered. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965).

Simultaneous Adoption and Custody Actions. —

Because the legislature has enunciated a public policy that every child should have a permanent plan of care, because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care and because the superior court has jurisdiction over adoptions, that court’s jurisdiction supersedes that of the district court with regard to the custody of a child the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

In the absence of an order of consolidation when the same child is the subject of a simultaneous custody and adoption proceeding, both the superior and district courts do not have continuing jurisdiction to fully adjudicate the respective issues before them. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

The filing of an adoption petition in the superior court divests the district court of jurisdiction to adjudicate issues of custody with regard to a child who is the subject of an adoption petition. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

Recommendation of Guardian Ad Litem. —

Pursuant to G.S. 7A-640 [see now G.S. 7B-901 and G.S. 7B-2501 ], the court may consider the recommendation of a guardian ad litem concerning the needs of a juvenile. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Mother Not Entitled to Proceeds of Forfeited Bond. —

A bond posted by father in custody dispute was deemed to be an appearance bond designed to guarantee his appearance before the court and as a penalty in the event of his failure to appear, and under N.C. Const., Art. IX, § 7 the county board of education was entitled to the clear proceeds of its forfeiture. Mussallam v. Mussallam, 321 N.C. 504 , 364 S.E.2d 364, 1988 N.C. LEXIS 9 (1988).

Provisions in Custody Orders. —

Provisions directing the parties to cooperate with one another and to refrain from conduct that will be detrimental to the child are commonly included in custody orders. Watkins v. Watkins, 120 N.C. App. 475, 462 S.E.2d 687, 1995 N.C. App. LEXIS 889 (1995).

Order requiring a custodial mother to move back to the county in which the parties had resided before separating to live in the marital home was set aside because, while the court could find the relative benefits of the children living with the father in one county or the mother in another county when making a primary custody determination, the order was not a “related matter” the general assembly gave trial courts the authority to decide. Kanellos v. Kanellos, 251 N.C. App. 149, 795 S.E.2d 225, 2016 N.C. App. LEXIS 1323 (2016).

Rights of Parents to Children’s Records. —

Trial court properly ordered that a mother share a child’s school and medical records with the father, as G.S. 50-13.2(b) provided that each parent have equal access to the records of the minor child involving the health, education, and welfare of the child. Young v. Young, 169 N.C. App. 31, 609 S.E.2d 795, 2005 N.C. App. LEXIS 539 , vacated, 360 N.C. 58 , 620 S.E.2d 674, 2005 N.C. LEXIS 1109 (2005).

Denial to a noncustodial mother of access to the medical, educational, and counseling records of the mother’s child was in error because the court’s findings of fact did not support a conclusion that it was in the best interest of the child to prevent the mother from accessing the records. While the mother’s behavior at the child’s school was disruptive, the findings did not indicate that the mother’s behavior made third-party professionals sufficiently concerned about their own safety, or have any other negative effect on the child. Paynich v. Vestal, 269 N.C. App. 275, 837 S.E.2d 433, 2020 N.C. App. LEXIS 12 (2020).

Collateral estoppel effect of findings in domestic violence protective order entered under G.S. 50B-1(a) , finding that the mother was responsible for the incident, collaterally estopped the finding in the custody case that the father was responsible for the incident; when the protective order was not appealed the collateral legal consequences of that order became final, precluding reconsideration of the order in the custody action under G.S. 50-13.2 . Doyle v. Doyle, 176 N.C. App. 547, 626 S.E.2d 845, 2006 N.C. App. LEXIS 517 (2006).

Trial court erred in a custody case in finding that the father had committed domestic violence because, in a prior domestic violence case, the court specifically found that the father had not committed domestic violence; G.S. 50-13.2(a) required the court in a custody case to consider domestic violence, but collateral estoppel prevented the court in the custody case from making findings which were contrary to the findings in the prior domestic violence action. Simms v. Simms, 195 N.C. App. 780, 673 S.E.2d 753, 2009 N.C. App. LEXIS 249 (2009).

Electronic Communication Not Equal to In-Person Visitation. —

G.S. 50-13.2 provided that electronic communication may not be used as a replacement or substitution for custody or visitation and, thus, the plaintiff’s contention that electronic communication was a form of visitation equal to that of in-person visitation was incorrect. Deanes v. Deanes, 269 N.C. App. 151, 837 S.E.2d 404, 2020 N.C. App. LEXIS 7 (2020).

II.Welfare of Child

The welfare of the child is the paramount consideration in custody matters. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); Williams v. Williams, 18 N.C. App. 635, 197 S.E.2d 629, 1973 N.C. App. LEXIS 1962 (1973); Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974); Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977).

The best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and neither of these rights should be permitted to jeopardize the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Although at one time under the common law the father was generally entitled to the custody of minor children, the courts at the present time almost invariably adhere to the principle that the welfare or best interest of the child is the paramount consideration. This was the rule adhered to by North Carolina courts for many years, and is now prescribed by this section. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

The child’s welfare is the principal consideration in determining custody matters. In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228, 1969 N.C. App. LEXIS 1137 (1969).

The primary consideration in custody cases is the welfare of the child or children involved. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140, 1969 N.C. App. LEXIS 1194 (1969).

An order for custody of a minor child cannot be affirmed without a clear indication that it rested on a determination of what would be in the child’s best interest. That is the paramount consideration in custody cases. In re DiMatteo, 62 N.C. App. 571, 303 S.E.2d 84, 1983 N.C. App. LEXIS 2934 (1983).

And the Polar Star by Which Court Is Guided. —

The welfare of the child is the polar star by which the discretion of the court is to be guided. In re Lewis, 88 N.C. 31 , 1883 N.C. LEXIS 13 (1883); Brake v. Brake, 228 N.C. 609 , 46 S.E.2d 643, 1948 N.C. LEXIS 281 (1948); Finley v. Sapp, 238 N.C. 114 , 76 S.E.2d 350, 1953 N.C. LEXIS 387 (1953); Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 13 11 (1966); Chriscoe v. Chriscoe, 268 N.C. 554 , 151 S.E.2d 33, 1966 N.C. LEXIS 1254 (1966); In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524, 1968 N.C. App. LEXIS 903 (1968); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, 1972 N.C. App. LEXIS 2167 , cert. denied, 281 N.C. 622 , 190 S.E.2d 465, 1972 N.C. LEXIS 1126 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, 1973 N.C. App. LEXIS 1442 , cert. denied, 283 N.C. 585 , 196 S.E.2d 809, 1973 N.C. LEXIS 1011 (1973); Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513, 1975 N.C. App. LEXIS 2427 (1975); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, 1975 N.C. App. LEXIS 2312 , cert. denied, 287 N.C. 664 , 216 S.E.2d 911, 1975 N.C. LEXIS 1175 (1975); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

The welfare of the child is controlling in determining the right to custody of the child as between its divorced parents. Hardee v. Mitchell, 230 N.C. 40 , 51 S.E.2d 884, 1949 N.C. LEXIS 545 (1949).

This section expresses the policy of the State that the best interest and welfare of the child is the paramount and controlling factor to guide the judge in determining the custody of a child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

As the Determining Factor. —

The children of the marriage become the wards of the court, and their welfare is the determining factor in custody proceedings. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969).

The welfare of the children is the determining factor in custody proceedings, and an award of custody based on that factor will be upheld when supported by competent evidence. In re Poole, 8 N.C. App. 25, 173 S.E.2d 545, 1970 N.C. App. LEXIS 1471 (1970).

And the Guiding Principle. —

The guiding principle to be used by the court in a custody hearing is the welfare of the children involved. While this guiding principle is clear, decision in particular cases is often difficult, and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981).

The trial court should primarily be concerned with the welfare of the child in deciding which party before it should be charged with the enormous responsibilities of custodianship of the child. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

In a custody proceeding, it is not the function of the court to punish or reward a parent by withholding or awarding custody of minor children; the function of the court in such a proceeding is to diligently seek to act for the best interests and welfare of the minor child. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

The best interest of the child is the overriding factor in custody determinations. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979).

Joint custody and any other custody award must include findings of fact which support such determination of child’s best interests. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627, 1990 N.C. App. LEXIS 485 (1990), aff'd, 328 N.C. 324 , 401 S.E.2d 362, 1991 N.C. LEXIS 178 (1991).

Considered in Light of All Surrounding Circumstances. —

The best interest of the child, in light of all the surrounding circumstances, is the paramount consideration which must guide the court in awarding custody of a minor child. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983).

Tender Years Presumption Abolished. —

Trial court erred in entering a custody order concerning the parties’ child; the trial court improperly relied on the tender years presumption in granting custody to the mother, as that presumption had been abolished, and G.S. 50-13.2(a) required that the custody decision be based solely on the best interests of the child, and G.S. 8C-1 , Rule 201(b) did not allow the trial court to take judicial notice of the assumptions underlying an abolished doctrine in order to resurrect the doctrine. Greer v. Greer, 175 N.C. App. 464, 624 S.E.2d 423, 2006 N.C. App. LEXIS 183 (2006).

Trial court did not apply tender years presumption in awarding a mother primary physical and legal custody of the parties’ child because there was nothing in the record to suggest the trial court relied on a psychologist’s affidavit or the mother’s testimony regarding a “special bond” in awarding the mother custody, and, in fact, the trial court specifically noted the child was securely bonded to the father. Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299, 2012 N.C. App. LEXIS 1312 (2012).

The trial judge is entrusted by this section with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child’s physical, mental, emotional, moral and spiritual faculties. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

Any evidence of child abuse is of the utmost concern in determining whether the grant of custody to a particular party will best promote the interest and welfare of the child, and any evidence of such abuse must be resolved by the trial court in its findings of fact. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

Evidence of paternity may properly be considered in determining the best interests of the children. Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661, 1993 N.C. App. LEXIS 1298 (1993).

A natural parent’s constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Acts of Domestic Violence Between Parties. —

Trial court’s best interests of the children determination under G.S. 50-13.2(a) was supported by its findings of fact, including its finding that the father had “body slammed” the mother 20 to 50 times during the marriage, and threatened to punch his brother-in-law in the nose. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901, 2008 N.C. App. LEXIS 202 (2008).

Although a mother voluntarily dismissed her domestic violence complaint at the time a memorandum of judgment was entered regarding custody, a trial court did not abuse its discretion in considering the claim when the father filed a motion for modification of custody, pursuant to G.S. 50-13.7 , because “acts of domestic violence between the parties” was one of the factors the trial court was to consider, pursuant to G.S. 50-13.2(a), when making findings as to the best interests of the child. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679, 2011 N.C. App. LEXIS 2242 (2011).

In a mother’s suit for the issuance of a domestic violence protective order, it was error to deny an out of state father’s motion to dismiss for lack of personal jurisdiction based on a theory, adopted in other states, distinguishing between “affirmative” and “prohibitive” orders because (1) that theory was not adopted, and (2) the father’s substantial rights were implicated, as, inter alia, the issuance of such an order could affect the father’s right to custody of the child. Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653, 2016 N.C. App. LEXIS 925 (2016).

III.Right of Parents to Custody

A.As Against Third Persons

Due Process. —

If a natural parent’s conduct has not been inconsistent with his or her constitutionally protected status, application of the “best interest of the child” standard in a custody dispute with a nonparent would offend the Due Process Clause. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Conduct inconsistent with a parent’s protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the “best interest of the child” test without offending the Due Process Clause. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Child’s biological mother voluntarily relinquished her paramount parental right to make decisions under the due process clause when she entered into a parenting agreement with her former domestic partner to hold herself, the partner, and the child out as a family unit. The voluntary relinquishment of rights was inconsistent with her paramount rights under the due process clause. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58, 2008 N.C. App. LEXIS 908 (2008).

Parents Have Legal Right to Custody of Their Children. —

Parents, including the mother of an illegitimate child, have the legal right to have the custody of their children unless clear and cogent reasons exist for denying them this right. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interest and welfare of the children clearly require it. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580, 1972 N.C. App. LEXIS 2127 (1972).

Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of the parties’ minor children. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Vaughn v. Tyson, 14 N.C. App. 548, 188 S.E.2d 614, 1972 N.C. App. LEXIS 2171 (1972).

Where mother abandons any claim she may have to the custody of her daughter, father alone has the natural and legal right to the custody of the child, unless for substantial and sufficient reasons the interest and welfare of the child require that he be denied that right. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969).

The mother of an illegitimate child is its natural guardian, and as such, has a legal right to its custody, care and control, if she is a suitable person, even though others may offer more material advantages in life for the child. But this rule is not absolute, and the custody of an illegitimate child may be taken from the mother and placed elsewhere when it clearly and manifestly appears that the best interests and welfare of the child demand it. Wall v. Hardee, 240 N.C. 465 , 82 S.E.2d 370, 1954 N.C. LEXIS 448 (1954).

Absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail. Petersen v. Rowe, 337 N.C. 397 , 445 S.E.2d 901, 1994 N.C. LEXIS 399 (1994).

Which Will Be Interfered with Only When Clearly Required. —

Where one parent is dead, the surviving parent has a natural and legal right to custody and control of the parties’ minor children. This right is not absolute, but it may be interfered with or denied only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

For Parent’s Misconduct or Child’s Welfare. —

The law presumes that the best interests of a child will be served by committing it to the custody of a parent, when the parent is a suitable person; this presumption is not overcome merely by showing that some third person can give the child better care and greater comforts and protection than the parent. A parent’s right to custody of a child may be forfeited only by misconduct or by other facts which substantially affect the child’s welfare. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580, 1972 N.C. App. LEXIS 2127 (1972).

But Child’s Welfare Is the Paramount Consideration. —

While the law presumes that the best interest of a child will be served by committing it to the custody of a parent, when the parent is a suitable person, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents, must be deferred or subordinated. Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983).

Parent’s Love Must Yield to Child’s Best Interests. —

The child’s welfare is the paramount consideration, and a parent’s love must yield to another if, after judicial investigation, it is found that the best interest of the child is subserved thereby. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969).

The “paramount consideration” and “polar star” which have long governed and guided the discretion of the trial judges are the welfare and needs of the child, not the persons seeking his or her custody, and even parental love must yield to the promotion of those higher interests. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

The natural parent is presumed to be the appropriate custodian of his or her child, as opposed to third persons, and should not be deprived of custody merely because the child could be better cared for in a material sense. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

But This Presumption May Be Rebutted. —

While it is presumed that it is in the child’s best interest to be placed with a natural parent, this presumption may be rebutted by a circumstance which would substantially affect the child. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979).

The primary concern of the trial court in a custody matter, as mandated by subsection (a) of this section, is the welfare of the child, and this concern outweighs the presumption favoring the award of custody to a natural parent. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

The presumption in favor of the natural parents is rebuttable. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

Although there is a rebuttable presumption in favor of a natural parent, it is not necessary to prove unfitness in order to overcome the presumption. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

A court must award custody based only upon the best interest and welfare of the child. A court must have discretion to determine the best interest of a child, and should not be restricted to awarding custody to a natural parent in the absence of a finding of unfitness. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

It is not necessary to prove a natural parent unfit in order to award custody to a third party. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

Custody May Be Granted to Third Person for Sufficient Reasons. —

The welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third person for good and sufficient reasons. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716, 1983 N.C. App. LEXIS 3559 (1983).

A child’s former care giver stated a claim as against the child’s father for custody of the child, where the father’s former companion alleged that the father had taken actions inconsistent with his protected status as a parent, including that the father had placed the child in his parents’ care and that they could not properly care for the child’s diabetes, resulting in hospitalization and potentially serious and permanent health consequences, and that the father had relinquished care of the child to others, including herself, on numerous occasions. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891, 1998 N.C. App. LEXIS 946 (1998).

Fitness of Parent. —

Mother’s convictions for driving while intoxicated and child’s developmental problems were significant and relevant to issue of mother’s fitness as a parent because they indicated her inability to care for the child adequately and to provide for the child’s welfare; additionally, the facts that she had substance abuse problems, did not respect authority, was unable to recognize her child’s developmental problems, and was incapable of caring for the child’s welfare supported the conclusion that she was an unfit parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

The State failed to show that the father was unfit, as against the child’s grandparents, to have custody of his child where he testified that if he were awarded custody of the child he would be willing to prohibit his brother, who was convicted for taking indecent liberties with a minor, from staying at his house and interacting with the child; where his own convictions were too remote to affect his fitness or were unrelated thereto; where he already had considerable experience in taking care of children; where his boss of 13 years and his volunteer supervisor, both described him as responsible, dependable, reliable and hardworking; and where he actively engaged in legal proceedings for approximately two years, evidencing a long-term commitment to attaining custody. Adams v. Tessener, 141 N.C. App. 64, 539 S.E.2d 324, 2000 N.C. App. LEXIS 1289 (2000), rev'd, 354 N.C. 57 , 550 S.E.2d 499, 2001 N.C. LEXIS 834 (2001).

Parent Need Not Be Found Unfit. —

Although there is a traditional preference for biological parents, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents must be deferred or subordinated, and the trial judge’s discretion is such that he is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

The trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983); In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

While the fitness of a natural parent is of paramount significance in determining the best interests of the child in custody contests, it is not always determinative in itself. It is entirely possible that a natural parent may be a fit and proper person to care for the child, but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

Fitness and Actions of Parent in Relationship with Domestic Partner Relevant. —

While a district court could have concluded that the fitness of a child’s biological mother warranted that she have sole custody, the district court was not required to do so where evidence indicated that the mother had voluntarily relinquished her due process rights to solely make decisions in the child’s life, intended that her former domestic partner become a de facto parent, and the partner had established a significant bond with the child. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58, 2008 N.C. App. LEXIS 908 (2008).

Temporary Relinquishment of Custody. —

There are circumstances where the responsibility of a parent to act in the best interest of his or her child would require a temporary relinquishment of custody; however, to preserve the constitutional protection of parental interests in such a situation, the parent should notify the custodian upon relinquishment of custody that it is temporary and avoid conduct inconsistent with the protected parental interests. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

In making custody decisions between a parent and a grandparent or other third party, the court must balance two doctrines. The first, the “parental right” doctrine, holds that ordinarily and in the absence of particular circumstances, the custody of a child should be given to the parent in preference to the grandparent, if the parent is found to be fit to have custody and can supply a proper home. The second doctrine, the “best interests of the child” doctrine, holds that custody should be awarded in accordance with the best interests of the child regardless of the fitness of the parents. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983).

To Whom Custody May Be Awarded. —

If the mother and the father are both fit and proper persons to have custody of children, under ordinary circumstances the court would then proceed to determine whether the best interest, health and welfare of the children would be served by awarding custody to the mother or father. If not, then the court must deal with someone or an agency over whom the court has control. But an order awarding custody, in effect, to third persons who are not parties to the proceeding, not a public institution, and not bound by the court’s order, must be reversed. Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833, 1970 N.C. App. LEXIS 1600 (1970).

Award of Custody to Grandparents. —

Where the custody of a minor child was awarded to the mother in a divorce proceeding, and subsequently, both parents, who were deemed proper and fit persons to have the custody of such child, moved out of the State, and the child was left by the mother with the child’s maternal grandparents, residents of the State and highly proper persons to rear the child, upon petition of the father for custody of the child the court had authority under this section to order that the child continue in the custody of the grandparents. Walker v. Walker, 224 N.C. 751 , 32 S.E.2d 318, 1944 N.C. LEXIS 242 (1944).

Where grandmother was a good housekeeper and showed the ability to care for the children the trial court erred in denying and dismissing grandmother’s petition for custody on the basis of its “serious concerns” about her parenting skills because of problems experienced by her daughter. Smith v. Alleghany County Dep't of Social Servs., 114 N.C. App. 727, 443 S.E.2d 101, 1994 N.C. App. LEXIS 496 (1994).

Where there are unusual circumstances and the best interests of the child justify such action, the court may refuse to award custody to either the mother or father and instead award the custody of the child to its grandparents or others. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

For case affirming order transferring custody to paternal grandmother and awarding visitation rights to both mother and father, see Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

Grandparents’ Rights When Family Intact. —

Under G.S. 50-13.1(a) , 50-13.2(b1), 50-13.2A, 50-13.5(j), a grandparent’s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative—the “intact family” rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child’s family is not intact before the grandparent can intervene to request visitation with his grandchild—G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children’s family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486, 2003 N.C. App. LEXIS 729 (2003).

Socioeconomic status of paternal grandmother, who intervened in custody case, was irrelevant to issue of mother’s fitness as a parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

It is only when the custody of a child is “in issue” or “being litigated” that the grandparents are entitled to relief pursuant to subsection (b1). Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251, 1996 N.C. App. LEXIS 1069 (1996).

Domestic Partner Denied Custody, Parental Status, and Reinstatement of Visitation Schedule. —

Trial court properly denied defendant’s claims for joint custody, recognition of parental status, and reinstatement of the original visitation schedule because plaintiff, defendant’s former domestic partner, did not engage in conduct inconsistent with plaintiff’s constitutionally protected status as the legal parent and did not allow defendant to function as a parent. Estroff v. Chatterjee, 190 N.C. App. 61, 660 S.E.2d 73, 2008 N.C. App. LEXIS 905 (2008).

Award to Department of Social Services. —

For case involving sexual abuse of daughters by father, in which children were adjudicated abused and neglected, and in which award of custody to the department of social services, with mother being given physical custody of one daughter and liberal visitation with the other daughter, who was placed with her grandmother, pending review in 60 days, was approved, see In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Foster Parents Have No Standing to Bring Custody Action. —

Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department’s or agency’s exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

But Custody May Be Awarded to Foster Parents. —

Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

The case of Oxendine v. Department of Social Servs., 303 N.C. 699 , 281 S.E.2d 370 (1981) does not prohibit the transfer of legal care, custody and control of a foster child to its foster parents. Oxendine stands for the proposition that foster parents have no standing to bring a custody action pursuant to G.S. 50-13.2 et seq. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Intervention by Foster Parents. —

In proceeding brought by DSS in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child’s foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986) (distinguishing) Oxendine v. Department of Social Servs., 303 N.C. 699 , 281 S.E.2d 370 (1981).

It was improper for a trial court to apply a G.S. 50-13.2(a) best interest analysis to a domestic partner’s application for joint custody without first determining that a natural parent’s conduct was inconsistent with her constitutionally protected status as a parent. Heatzig v. MacLean, 191 N.C. App. 451, 664 S.E.2d 347, 2008 N.C. App. LEXIS 1480 (2008).

Claim for Custody Held Not Frivolous. —

Where there was no indication at trial that the grandparents in fact did not wish to obtain custody of the children or that their claim was made in bad faith, the fact that the grandparents had originally asked for visitation did not make their later claim for custody violative of G.S. 1A-1 , Rule 11. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Remand Where Custody Awarded to One Who Was Not a Party. —

While the court, upon proper findings and conclusions, may award the custody of a minor child to any such person, agency or institution as will best promote the interest and welfare of the child, where the court awarded custody of the child to one who was not a party to the proceeding, the proceeding would be remanded with directions that the trial court issue the necessary notices and orders to make such individual a party to the action, to the end that the court would have effective jurisdiction over her person. In re Edwards, 25 N.C. App. 608, 214 S.E.2d 215, 1975 N.C. App. LEXIS 2336 (1975).

Reversal of Award to Third Party. —

Where in an initial custody determination, the trial court conducted the “best interest and welfare” analysis, and based solely on that analysis, awarded custody of the minor child to defendant (friend of mother who had cared for child since birth) rather than the plaintiff/father, the child’s natural parent, the award of custody on this basis was error and must be reversed. Lambert v. Riddick, 120 N.C. App. 480, 462 S.E.2d 835, 1995 N.C. App. LEXIS 890 (1995).

B.As Between Parents

Conviction of Abandonment Did Not Preclude Award of Custody. —

The fact that father had been convicted of abandonment of his children and ordered to provide for their support did not preclude the court from finding, upon a hearing of a subsequent motion for the custody of the children in a divorce action, that father was a fit and suitable person to have custody of the children, when there was uncontradicted evidence upon the hearing that father had a good reputation in the community in which he lived. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Effect of Prior Order of Incompetence. —

In a controversy between husband and wife for custody of minor children of the marriage, it is error for the trial court to award custody to the husband on the sole ground that the wife has prior to that time been judged mentally incompetent. A prior court order which judicially declares a parent to be incompetent is not sufficient in and of itself to establish a parent’s present unfitness to have a child or children; rather, this section requires a full, factual determination of all the circumstances in the case before a proper order may be entered by the court. Price v. Price, 42 N.C. App. 66, 255 S.E.2d 652, 1979 N.C. App. LEXIS 2739 (1979).

Relevance of Evidence of Adultery. —

The court committed prejudicial error in refusing to allow plaintiff to introduce evidence of defendant’s adultery at a hearing on a custody motion. While evidence of adultery does not impel a finding of unfitness of the adulterous parent, it is relevant upon an inquiry of fitness of a person for the purpose of awarding custody of minor children to him or to her. Darden v. Darden, 20 N.C. App. 433, 201 S.E.2d 538, 1974 N.C. App. LEXIS 2457 (1974); Hunt v. Hunt, 29 N.C. App. 380, 224 S.E.2d 270, 1976 N.C. App. LEXIS 2484 (1976). See also, In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

Joint Legal Custody Appropriate. —

In addition to findings regarding parties’ financial status and what would best serve interests of children, court had before it plaintiff’s admission that she indeed thought defendant to be fit and proper person as stated in her verified reply to defendant’s answer and counterclaim. Thus, joint legal custody was appropriate. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627, 1990 N.C. App. LEXIS 485 (1990), aff'd, 328 N.C. 324 , 401 S.E.2d 362, 1991 N.C. LEXIS 178 (1991).

Joint Legal Authority. —

Trial court erred in dividing decision-making responsibilities between the parties after awarding joint legal custody because the trial court had not made the necessary findings of fact to warrant a division of joint legal authority; the trial court’s mere findings that the parties had a tumultuous relationship did not satisfy the required findings. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901, 2008 N.C. App. LEXIS 202 (2008).

The fact that mother’s paramour had been living with mother and minor child since the parties’ separation was insufficient, standing alone, to determine custody; the court must consider all the facts of the case and decide the issue in the best interests of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Award Where Both Parents Are Found Fit — Generally. —

When there has been a finding that both parents are fit and suitable to have custody, the judge’s order is conclusive when supported by evidence. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

Same — Award to Father. —

When the court finds that both parties are fit and proper persons to have custody, and then adjudges that it is in the best interest of the child for the father to have custody, such holding will be upheld; but it must be supported by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

When the court finds that both parties are fit and proper persons to have custody of the children involved, and then finds that it is in the best interests of the children for the father to have custody of said children, such holding will be upheld when it is supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833, 1970 N.C. App. LEXIS 1600 (1970).

Where the evidence was sufficient to support the court’s finding that father was a suitable person to have custody of his son and that the best interests of the child would be served by awarding the child’s custody to him, order awarding the custody to the father was proper, even though the evidence would also have supported a finding that the child’s mother was a fit and suitable person and that the best interests of the child would be served by awarding custody to her. In re White, 262 N.C. 737 , 138 S.E.2d 516, 1964 N.C. LEXIS 732 (1964).

Age of Parents. —

All else being equal, a 55-year-old person has a shorter remaining life span than a 33-year-old person and the consideration of continuity and stability in the life of a child will logically lead a judge to consider the age of a parent. Consideration of all aspects of both parents’ lives, including the potential for continuity and stability, is necessary to promote the governmental interest of granting custody on the best interests of the child. Phelps v. Phelps, 337 N.C. 344 , 446 S.E.2d 17, 1994 N.C. LEXIS 415 (1994).

A passing comment about a party’s age, when determining a child’s best interest in accordance with the statute, does not constitute an unconstitutional classification in violation of a party’s equal protection rights. Phelps v. Phelps, 337 N.C. 344 , 446 S.E.2d 17, 1994 N.C. LEXIS 415 (1994).

Award to Father on Finding of Changed Circumstances. —

Trial judge did not abuse his discretion by ruling that a material change in circumstances had occurred with the increased age of younger child, who had been awarded previously to the mother, since the child indicated clearly his desire to stay with his father, who also had custody of his elder brother. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

Where father failed to offer evidence of mother’s adultery at divorce trial, but after the divorce moved for a change of custody on that ground, the trial court’s reassignment of custody of the child to father due to a material change of circumstances since the date of the divorce was not erroneous merely because the crucial circumstances, e.g., the mother’s adultery, existed before divorce. The child should not be placed in the custody of an unfit parent merely because the other parent failed to introduce evidence at the proper stage of the litigation. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

Award to Father on Condition That Physical Custody Be in Grandparents. —

Where the court’s conclusions that the mother was an unfit person to have custody of the children and that the father was a fit and suitable person to have their custody was supported by the findings, but neither the father nor the paternal grandparents had a suitable home for the children, and that the maternal grandparents, with whom the children were then living, had such a home, an order awarding the custody of the children to the father on condition that the physical custody of the children be vested in their maternal grandparents and that the father pay for their support would not be disturbed on appeal, the welfare of the children being the determinative factor in the award of custody. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Award of Custody to Father Held Proper. —

Trial court did not err in concluding that it would be in the best interest of minor child for her custody to be placed with defendant father where, pursuant to separation agreement, plaintiff mother gave defendant custody of the child and agreed to assist with medical and dental bills on behalf of the child; the child had lived with defendant at all times since her birth and lived solely with defendant since the parties’ separation; plaintiff rarely visited the child following the parties’ separation; and plaintiff admitted that defendant had done a good job of looking after the child since their separation. Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460, 1981 N.C. App. LEXIS 2566 (1981).

Findings on Award of Custody to Mother Held Sufficient. —

Findings that the parties had been married and divorced, that the wife was a person of good character, resident in this State, that the husband was financially responsible, and that the best interest of the minor child of the marriage would be promoted by awarding its custody to the wife were sufficient to sustain a decree awarding its custody to her and requiring the husband to make contributions for the support of the child. Hardee v. Mitchell, 230 N.C. 40 , 51 S.E.2d 884, 1949 N.C. LEXIS 545 (1949).

Award to Mother Upheld. —

Where the trial court found, upon supporting evidence, that the mother was now a stable, fit, and suitable custodian of her children, and that their best interests required that their custody be awarded to her, the Supreme Court would affirm the award of custody. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

Trial court did not abuse its discretion in modifying a custody order to grant joint legal custody to a mother and father with the mother having primary custody because there had been a substantial change in circumstances affecting the child and modification was in the child’s best interests pursuant to G.S. 50-13.2(a); father had moved out of state with the child, had facilitated renewed contact with the child’s maternal grandfather despite a court order prohibiting the contact, and the child had been harmed by a dog while in the father’s care. Pass v. Beck, 210 N.C. App. 192, 708 S.E.2d 87, 2011 N.C. App. LEXIS 300 (2011).

Trial court properly entered an initial custody order awarding primary and legal custody of the parties’ child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial’s parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent’s fitness as a parent, which was caused by the noncustodial’s failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561, 2016 N.C. App. LEXIS 298 (2016).

Custody of Child Upheld Where Father Never Visited. —

Where plaintiff mother had had de facto custody of five-year old child since his birth, and defendant, who had acknowledged paternity of the child when he was there, had not visited the child in a substantial length of time, nor had he requested visitation privileges or custody, formal award of custody to mother would be upheld. Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249, 1988 N.C. App. LEXIS 173 (1988).

Illegitimate Child. —

As to the custody of an illegitimate child, see Jolly v. Queen, 264 N.C. 711 , 142 S.E.2d 592, 1965 N.C. LEXIS 1265 (1965).

By its plain language, G.S. 50-13.2(a) clearly abrogates the common-law presumption vesting custody of an illegitimate child in the child’s mother. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

Illegitimate child’s father who has acknowledged his paternity under G.S. 110-132(a) and whose conduct is consistent with his right to care for and control his child has a right to custody of his illegitimate child legally equal to that of the child’s mother, and, pursuant to G.S. 50-13.2 , if the best interest of the child is served by placing the child in the father’s custody, he is to be awarded custody of that child. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

As the common-law rule that custody of an illegitimate child presumptively vested in the mother was abrogated by G.S. 50-13.2(a), the trial court properly applied the “best interest of the child” standard in awarding custody to the child’s father, who had acknowledged his paternity under G.S. 110-132(a), paid child support without a court order, and provided that child with a stable and structured life. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

In applying the best interest of the child standard to award joint custody of an illegitimate child to the parents, district court applied the correct standard as between the parents, because the common law presumption in favor of awarding custody of the illegitimate child to the mother was abrogated by G.S. 50-13.2 and the case law. David v. Ferguson, 160 N.C. App. 89, 584 S.E.2d 102, 2003 N.C. App. LEXIS 1665 (2003).

For case as to former preference that mother be given custody, see Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

IV.Visitation Rights

Court May Divide Custody Between Parents or Award General Custody Subject to Visitation Privileges. —

The trial court has discretionary power either to divide custody between contending parents for alternating periods, or to award general custody to one parent, subject to visitation privileges in favor of the unsuccessful parent. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953).

The standard by which the court is guided in visitation matters is the child’s best interest. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Burden of Proof. —

Grandparents seeking visitation rights had the burden of proving that the award of visitation was in the best interest of the children; therefore, where trial judge reversed the burden, so that the mother had to prove that the visitation was bad for the children, the judge was in error. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Findings as to Visitation. —

To support an award of visitation rights, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the party is a fit person to visit the child and that such visitation rights are in the best interest of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

Where the trial judge specifically considered a child’s best interests in determining custody and visitation in accordance with G.S. 50-13.2(a) and the evidence supported the trial court’s findings, the trial court did not abuse its discretion by ordering visitation between the minor child and the father. Pass v. Beck, 156 N.C. App. 597, 577 S.E.2d 180, 2003 N.C. App. LEXIS 196 , cert. denied, 357 N.C. 252 , 582 S.E.2d 277, 2003 N.C. LEXIS 706 (2003).

Order for Professional Consultation Within Court’s Discretion. —

Where trial court found defendant’s contact with his minor child had been minimal, although he was fit and proper to have visitation rights, consultation with plaintiff and defendant by a third-party professional could benefit the court in awarding specific visitation rights; therefore, there was no abuse of discretion in the court’s ordering the consultation prior to its consideration of visitation rights. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179, 1989 N.C. App. LEXIS 622 (1989).

Visitation Rights to Parent Restricted. —

Trial court properly entered an initial custody order awarding primary and legal custody of the parties’ child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial’s parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent’s fitness as a parent, which was caused by the noncustodial’s failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561, 2016 N.C. App. LEXIS 298 (2016).

When Visitation May Be Denied. —

A parent’s right of visitation with his or her child is a natural and legal right, and when awarding custody of a child to another, the court should not deny a parent’s right of visitation at appropriate times unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child’s welfare. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

The grandmother did not have standing under this section to seek visitation with her grandchildren, where the children had been adopted by their biological aunt and her husband, and custody was not an issue. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226, 1998 N.C. App. LEXIS 1544 (1998).

Suspension of Visitation Due to Pandemic. —

Trial court’s award and temporary suspension of mother’s supervised visitation in favor of weekly video contact was affirmed; in light of mother’s criminal history and abusive behavior toward her social worker, the trial court found the child’s best interests were best served by limiting mother to visitation at a supervised visitation facility, and with it closed due to the pandemic, the trial court temporarily suspended visitation until it became available. This did not amount to a replacement or substitution for visitation. In re K.M., 2021-NCCOA-232, 277 N.C. App. 592, 861 S.E.2d 10, 2021- NCCOA-232, 2021 N.C. App. LEXIS 235 (2021).

Determination of Visitation Rights May Not Be Delegated. —

If the court finds that the parent has by conduct forfeited the right of visitation or if the court finds that the exercise of the right would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, his or her child; but the court may not delegate this authority to the custodian. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Court Should Safeguard Visitation Rights by Provision in Order. —

If the court does not find that a parent has by conduct forfeited the right of visitation and does not find that the exercise of the right would be detrimental to the best interest and welfare of the child, the court should safeguard the parent’s visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Enforcement of Visitation Orders. —

Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in this section, that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Receipt of Support May Not Be Conditioned on Visitation. —

A trial judge does not have authority to condition a minor child’s receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

District court was authorized to grant the father of an illegitimate child visitation privileges and to punish the mother for refusing to allow the father to visit his illegitimate child. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88, 1974 N.C. App. LEXIS 1947 (1974).

Grant of Visitation Rights to Homosexual Father. —

The trial court did not err in granting a father who was homosexual unsupervised overnight visitation rights with his minor son. Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775, 1979 N.C. App. LEXIS 3259 (1979).

Grandparents May Not Be Awarded Visitation Rights When Custody Is Not in Issue. —

While subsection (b1) of this section authorizes the court to provide for the visitation rights of grandparents when the custody of minor children is being litigated, it does not authorize the court to enter such an order when the custody of the children is not in issue. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662, 1988 N.C. App. LEXIS 298 (1988).

This section and G.S. 50-13.5 and G.S. 50-13.2 A must be read in conjunction with G.S. 50-13.1(a) so as to harmonize them and give effect to a consistent legislative policy. Under them, a grandparent’s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative. McIntyre v. McIntyre, 341 N.C. 629 , 461 S.E.2d 745, 1995 N.C. LEXIS 409 (1995).

Standing to Seek Grandparent Visitation. —

Mother’s motion to dismiss grandparents’ motion for visitation was properly denied because, although the parents had entered into a consent judgment in the underlying child custody dispute, the custody of the child was still “in issue” and “being litigated” by the parents when the grandparents moved to intervene, and thus, under G.S. 50-13.2(b1), the grandparents had standing to intervene at the time; the resolution of the custody dispute between the parents did not wipe out the grandparents’ claim. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775, 2009 N.C. App. LEXIS 449 (2009).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father’s death and the child had not been adopted by a stepparent or relative. Graham v. Jones, 270 N.C. App. 674, 842 S.E.2d 153, 2020 N.C. App. LEXIS 249 (2020).

Paternal grandparents had statutory standing to seek permanent visitation rights, notwithstanding that the father had died, as they had been allowed to intervene when custody between the father and the mother was in dispute. Alexander v. Alexander, 276 N.C. App. 148, 856 S.E.2d 136, 2021- NCCOA-61, 2021 N.C. App. LEXIS 68 (2021).

Grandparent Had No Rights to Proceed. —

There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S. 50-13.1(a) , this section, G.S. 50-13.2 A, or G.S. 50-13.5(j). Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214, 2000 N.C. App. LEXIS 158 (2000).

Grandparents Had Right to Intervene in Pending Custody Action. —

In a child custody action, the order granting intervention to the maternal grandparents on ground there was a pending matter regarding future visitation before the court was proper; because the issue of the mother’s visitation was still pending, the custody of the child was still “in issue” and was “being litigated” by the parents. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578, 2009 N.C. App. LEXIS 109 (2009).

Trial court erred in concluding a grandmother’s visitation rights under a prior custody order did not survive termination of a mother’s parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother’s parental rights did not extinguish the grandmother’s court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d 236, 2019 N.C. App. LEXIS 216 (2019).

Insufficient Findings to Support Order for Grandparent Visitation. —

Remand of order granting grandparent visitation was necessary because the trial court made no explanation in its findings of fact as to why it determined that it was preferable to take the majority of the grandparents’ vacation visitation time out of mother’s custodial time; moreover, it was unclear that the trial court considered the possible interaction between the parents’ consent judgment and its order awarding visitation to the grandparents. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775, 2009 N.C. App. LEXIS 449 (2009).

As parents with lawful custody of their children have the prerogative of determining with whom they shall associate. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662, 1988 N.C. App. LEXIS 298 (1988).

Electronic Video Communication. —

In proceedings wherein a five-year-old child was adjudicated neglected, the trial court erred in denying the mother in-person visitation and permitting only electronic video communication, G.S. 50-13.2(e), because the court failed to find the mother forfeited her right to visitation or that visitation was not in the child’s best interest, G.S. 7B-905(c). In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823, 2013 N.C. App. LEXIS 171 (2013).

Visitation Rights to Parent In Foreign Country. —

Trial court, when it awarded one parent in North Carolina the primary physical care and custody of the parties’ minor child, properly awarded visitation privileges to the other parent, who was a citizen and resident of Canada and a missionary in Malawi, because the court considered the factors relevant to the child’s best interest, including the characteristics of the parties and the one parent’s concerns about the possible dangers to the child if the child were to travel to Malawi. Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886, 2015 N.C. App. LEXIS 816 (2015).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. —

Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, 271 N.C. App. 172, 843 S.E.2d 306, 2020 N.C. App. LEXIS 304 (2020).

V.Wishes of Child

Wishes of Child of Sufficient Age Are Entitled to Weight. —

The wishes of a child of sufficient age to exercise discretion in choosing a custodian are entitled to considerable weight when the contest is between the parents, but are not controlling. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981).

A child may be a competent witness and ought to be examined in that character. Indeed, being the party mainly concerned, he has a right to make a statement to the court as to his feelings and wishes upon the matter. This ought to be allowed serious consideration by the court, in the exercise of its discretion. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

In making the weighty choice of awarding custody, the judge may properly consider the preference or wishes of a child of suitable age and discretion. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

As to the courts’ consideration of the wishes of a child of suitable age, see also In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Because Child’s Wishes Will Aid Determination of His Best Interests. —

The child’s wishes will be one factor considered by the court in determining his custody, usually not because of any legal right in the child to have his wishes granted, but because the consideration of such wishes will aid the court in making a custodial decree which is for the best interests and welfare of the child. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

But Such Wishes Are Not Controlling. —

When a child has reached the age of discretion, the court may consider the preference or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view on the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be the child’s best interests, regardless of the child’s personal preference. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

Although the preference of a child of discretion would seem to have its greatest weight when the controversy is between the parents and both are fit persons, the child’s wishes are only entitled to consideration and are not controlling. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Weight to Be Given Child’s Testimony Is for the Court. —

A child has a right to have his testimony heard. However, the weight to be attached to such testimony is within the discretion of the trial judge. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

Lack of Findings as to Child’s Preferences Insufficient to Upset Award. —

Failure of the court to include a finding as to the preferences of the minor child is insufficient to upset its order of award of custody. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Ten Year Old. —

A child’s preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a 10-year-old child in making his determination. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child’s welfare. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

VI.Discretion of Trial Court

Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

The question of custody is one addressed to the trial court. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

Trial Judge Is Vested with Broad Discretion. —

The trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving custody of children. Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, 1975 N.C. App. LEXIS 2312 , cert. denied, 287 N.C. 664 , 216 S.E.2d 911, 1975 N.C. LEXIS 1175 (1975); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977); Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871, 1978 N.C. App. LEXIS 2313 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1222 (1979); In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

While the welfare of the child is always to be treated as the paramount consideration, wide discretionary power is necessarily vested in the trial court in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953); Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

The trial court has broad discretion in deciding child custody cases. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

The trial judge is vested with broad discretion in child custody cases. The “paramount consideration” which limits this discretion is the welfare and needs of the children. Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716, 1983 N.C. App. LEXIS 3559 (1983).

The trial judge is vested with broad discretion in child custody cases, and that discretion must be exercised to serve the welfare and needs of the children. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277, 1986 N.C. App. LEXIS 2435 (1986).

Judge’s Decision Will Not Be Upset Absent Abuse. —

The decision to award custody of a minor is vested in the discretion of the trial judge, who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524, 1968 N.C. App. LEXIS 903 (1968); In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228, 1969 N.C. App. LEXIS 1137 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, 1972 N.C. App. LEXIS 2167 , cert. denied, 281 N.C. 622 , 190 S.E.2d 465, 1972 N.C. LEXIS 1126 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, 1973 N.C. App. LEXIS 1442 , cert. denied, 283 N.C. 585 , 196 S.E.2d 809, 1973 N.C. LEXIS 1011 (1973); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616, 1979 N.C. App. LEXIS 2335 (1979); Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983).

Where trial judge enters a custody order that in his judgment is in the best interest of the child, the appellate division should not reverse that judgment and hold, as a matter of law, that the trial judge was obliged to have reached a different opinion, in the absence of a clear showing of abuse of discretion. Decisions in custody cases are never easy, and the trial judge has the opportunity to see the parties in person and to hear the witnesses. He can detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges. Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849, 1979 N.C. App. LEXIS 2767 (1979).

If Supported by Competent Evidence. —

The trial judge’s decision as to custody will not be upset, in the absence of a clear abuse of discretion, if his findings are supported by competent evidence. Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871, 1978 N.C. App. LEXIS 2313 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1222 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

The question of custody is one addressed to the trial court, and the court’s decision will be upheld if supported by competent evidence. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

The trial judge is present where he can observe and hear the parties and their witnesses, and ordinarily his decision on custody will be upheld if supported by competent evidence. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

Instead of applying an inflexible rule, the court must consider all facts of the case and decide the issue in accordance with the best interests of the child. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

Discretion to Allow Grandparent’s Visitation Rights. —

Although the trial judge determined that the appellant-defendant would continue to have primary custody of the children, it was entirely within the trial judge’s discretion to allow the grandparents’ visitation rights based on the best interest of the children. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Nature of Evidence. —

An order for custody should be entered only after the most careful consideration, and only after the court has had the benefit of more reliable evidence than is usually afforded by affidavits. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

Discretion Not to Include A Provision. —

Plaintiff provided no supporting guidance as to how or why the trial court was required to make certain findings and the issue was not addressed; moreover, as the trial court orally noted that it would not entertain a parenting-time right of first refusal as being in the best interests of the minor children, it was within the discretion of the trial court to not include such a provision, either to its granting or denial, in the child custody order. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

No Abuse in Child Custody Decision. —

Trial court did not abuse its discretion in determining that relocation to California with the father was in the child’s best interest, nor did it violate this section in its order after finding that the father had an immediately proximate support system to help him care for the child while the mother’s support system was four hours away from the mother, who lived alone and was in the military since the mother’s military status was not the only basis for the decision. Munoz v. Munoz, 2021-NCCOA-399, 278 N.C. App. 647, 864 S.E.2d 364, 2021- NCCOA-399, 2021 N.C. App. LEXIS 422 (2021).

Trial court did not abuse its discretion in determining that relocation to California with the father was in the child’s best interest, nor did it violate this section in its order after finding that the father had an immediately proximate support system to help him care for the child while the mother’s support system was four hours away from the mother, who lived alone and was in the military since the mother’s military status was not the only basis for the decision. Munoz v. Munoz, 2021-NCCOA-399, 278 N.C. App. 647, 864 S.E.2d 364, 2021- NCCOA-399, 2021 N.C. App. LEXIS 422 (2021).

VII.Findings of Fact

Trial Court Must Make Findings of Fact. —

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981); Story v. Story, 57 N.C. App. 657, 291 S.E.2d 923 (1982).

The court erred in not permitting the parties to a “joint custody” agreement to present extrinsic evidence of the parties’ understanding of the meaning of those terms and their intent at the time of the agreement before determining whether the plaintiff wife had breached the agreement by failing to take steps to help the son who had drug abuse problems, thereby excusing the defendant husband from paying alimony. Patterson v. Taylor, 140 N.C. App. 91, 535 S.E.2d 374, 2000 N.C. App. LEXIS 1035 (2000).

Before awarding custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party will best promote the interest and welfare of the child. Findings of fact as to the characteristics of the competing parties must be made to support the necessary conclusion of law. These findings may concern physical, mental, or financial fitness or any other factors brought out in the evidence and relevant to the issue of the welfare of the child. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466, 1978 N.C. App. LEXIS 2557 (1978).

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child; the conclusion of law determinative of the custody is not, therefore, that the person gaining custody is a fit and proper person to have custody, but which party will best promote the interest and welfare of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Which Must Be More Than Mere Conclusory Statements. —

A custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child, and custody orders are routinely vacated where the findings of fact consist of mere conclusory statements that the party being awarded custody is a fit and proper person to have custody and that it will be in the best interests of the child to award custody to that person. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

And Must Resolve Questions Raised by Evidence. —

Findings bearing on the party’s fitness to have care, custody and control of the child and findings as to the best interests of the child must resolve all questions raised by the evidence pertaining thereto. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

But the trial judge is not required to find all the facts shown by the evidence. It is sufficient if enough material facts are found to support the judgment. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Findings of Fact Insufficient. —

Without a finding of a substantial change of circumstances, a modification based solely on the ground that the defendant mother was over-protective was improper. Benedict v. Coe, 117 N.C. App. 369, 451 S.E.2d 320, 1994 N.C. App. LEXIS 1269 (1994).

The trial court erred in amending the custody decree based on a finding of substantial change in circumstances where it found only that the proposed relocation of the mother after her remarriage would adversely affect the relationship between the father and his child but made no other findings about the effect of the proposed relocation on the child and on the child’s best interests. Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576, 2000 N.C. App. LEXIS 536 (2000).

Trial court erred in entering a custody order which prohibited a father from owning or possessing firearms until the children were emancipated; the trial court failed to make required findings pursuant to G.S. 50-13.2(a) on whether the safety of the children was endangered by the father’s possession of firearms. Martin v. Martin, 167 N.C. App. 365, 605 S.E.2d 203, 2004 N.C. App. LEXIS 2177 (2004).

Findings Supported by the Evidence. —

Trial court did not err in awarding primary physical custody of the children to the husband under G.S. 50-13.2(a); by placing the children in the husband’s physical custody, the children remained in the home and community where they had been raised, the husband demonstrated his ability to care for the children, and some of the husband’s extended family lived nearby and could help with the children. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264, 2005 N.C. App. LEXIS 609 (2005).

Court’s findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982).

Only One Finding. —

While a court had the power under G.S. 7B-903 to enter an order transferring the custody of a minor child from her father to her mother, there was no evidence in the record in a proceeding on the parties’ cross-motions for contempt that supported the finding that transferring custody to the mother was in the child’s best interests. The court made only one finding, that the child missed the two people in her life who had neglected her, which was not a basis for not allowing custody to remain with the father, the trial court had a right under G.S. 50-13.2(a) to consider, but did not consider, acts of domestic violence by the child’s stepfather toward her mother when determining the child’s best interests, and the trial court had no right to take custody away from the father simply because he was unmarried. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416, 2006 N.C. App. LEXIS 866 (2006).

Failure to Make Findings Is Error. —

It is error for the court granting a decree of divorce to award the custody of a child without findings of fact from which it could be determined that the order was adequately supported by competent evidence and was for the best interest of the child. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

Trial court erred in granting permanent custody of a child to the child’s natural parent, who had extremely limited contact with the child before the other parent’s death, because it was speculative to assess what the quality of their relationship would be after a four-month “get acquainted” period during which temporary custody had been granted to the child’s grandparents. McRoy v. Hodges, 160 N.C. App. 381, 585 S.E.2d 441, 2003 N.C. App. LEXIS 1790 (2003).

And Will Necessitate Remand. —

When the trial court fails to find facts so that the reviewing court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197, 1976 N.C. App. LEXIS 2472 (1976); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

An order awarding custody of a child to the father, without any findings of fact other than a recital that the court had previously awarded custody to the father in a proceeding under former G.S. 17-39 , was fatally defective, and the case would be remanded for detailed findings of fact. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

Court’s Findings Are Conclusive If Supported by Evidence. —

The findings of the trial court in regard to the custody of children are conclusive when supported by competent evidence. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197, 1976 N.C. App. LEXIS 2472 (1976).

Findings of fact by the trial court in a proceeding to determine the custody of a minor child ordinarily are conclusive when based on competent evidence. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953).

In a hearing to determine the right to custody of the children of the marriage, the court’s findings of fact are conclusive if supported by competent evidence. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Findings Are Binding on the Appellate Courts. —

The trial judge’s findings of fact in custody orders are binding on the appellate courts if supported by competent evidence. Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974).

Findings Will Not Be Disturbed Thereby. —

The court’s findings of fact as to the care and custody of children will not be disturbed when supported by competent evidence, even though the evidence be conflicting. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

The normal rule in regard to the custody of children is that where there is competent evidence to support a judge’s finding of fact, a judgment supported by such findings will not be disturbed on appeal; however, the facts found must be adequate for the appellate court to determine that the judgment is substantiated by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Even When Evidence Is Conflicting. —

The findings of the trial judge regarding custody and support are conclusive when supported by competent evidence, even when the evidence is conflicting, the standard for disturbing the trial judge’s decision on appeal being a clear showing of abuse of discretion. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Conclusory Statements Held Inadequate. —

For a case setting forth a visitation order and holding that order to be conclusive and not supported by adequate findings of fact, see Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

But an order may contain extensive findings and still be fatally defective when not supported by the evidence. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Use of Fifth Amendment Privilege. —

Father could not take advantage of the presumption that it is in the best interest of the child to be in the custody of his natural parent by introducing evidence of his fitness and then invoking his Fifth Amendment privilege against self-incrimination when questioned about his illegal drug activity. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433, 1996 N.C. App. LEXIS 481 (1996).

Where the father failed to make a showing of fitness and the court could not determine his fitness because of his assertion of the Fifth Amendment, the court acted properly in dismissing his claim for custody. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433, 1996 N.C. App. LEXIS 481 (1996).

Best Interests of the Child. —

G.S. 50-13.2(a) and G.S. 7B-1110 both require a court to make findings of fact as to a child’s best interests. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572, 2009 N.C. App. LEXIS 108 (2009).

No Abuse of Discretion. —

Trial court acted within its discretion in awarding primary legal custody to defendant, as supported by its findings of fact; the findings included, in part, that plaintiff struck defendant in the face while defendant was pregnant, plaintiff hid a recording device in defendant’s bedroom without her knowledge or consent, plaintiff sued both of defendant’s parents, who provided the minor children with childcare, and defendant handled the majority of the minor children’s educational and medical treatment issues. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

VIII.Effect of Verdicts, Separation Agreements and Consent Judgments

Verdict in Divorce Action Is Not Controlling. —

The verdict in a divorce action can be an important factor in the judge’s consideration of an award of custody, but it is not legally controlling. It is merely one of the circumstances for him to consider, along with all other relevant factors. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

Findings and Conclusions Not Required for Child Consent Judgments. —

While G.S. 1A-1 , Rule 52 and this section mandate findings of fact and conclusions when a court adjudicates child custody, child consent judgments need not contain such findings of fact and conclusions of law, and consenting parties waive their right to have the court adjudicate the merits of the case. Buckingham v. Buckingham, 134 N.C. App. 82, 516 S.E.2d 869, 1999 N.C. App. LEXIS 657 (1999).

When a father filed a motion for modification of custody, a trial court did not abuse its discretion in looking back to the facts surrounding the best interests of the child, pursuant to G.S. 50-13.2(a), at the time the memorandum of judgment was entered to make appropriate findings to provide a base line before it could determine if there had been a material change in circumstances, pursuant to G.S. 50-13.7 , because the mother and father had waived findings of fact and conclusions of law at the time the memorandum of judgment by consent was entered. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679, 2011 N.C. App. LEXIS 2242 (2011).

Nor Are Separation Agreements and Consent Judgments Based Thereon. —

Valid separation agreements, including consent judgments based on such agreements with respect to marital rights, 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. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

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. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560, 1976 N.C. App. LEXIS 2383 (1976).

And Court Is Not Precluded Thereby from Acting Under This Section. —

A deed of separation between husband and wife containing an agreement for the custody of their minor child does not preclude the court, upon granting a decree for absolute divorce in a suit brought subsequent to the deed of separation, from awarding the custody of the child in accordance with this section. In re Albertson, 205 N.C. 742 , 172 S.E. 411, 1934 N.C. LEXIS 54 (1934).

The fact that petitioner agreed when separation took place between herself and her husband that the custody of their child should remain with the father was not binding on the court. Finley v. Sapp, 238 N.C. 114 , 76 S.E.2d 350, 1953 N.C. LEXIS 387 (1953).

As no agreement between spouses will deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of infants. The parties may bind themselves by separate agreement or by a consent judgment, but they cannot thus withdraw the children of the marriage from the protective custody of the court. State v. Duncan, 222 N.C. 11 , 21 S.E.2d 822, 1942 N.C. LEXIS 3 (1942); Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963).

Provisions in a deed of separation for support of the minor children of the marriage, entered as a consent judgment by the court, cannot deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of the infants; therefore, judgment increasing the allowance for the minor children upon findings of a change of circumstances warranting such increase would be affirmed. Bishop v. Bishop, 245 N.C. 573 , 96 S.E.2d 721, 1957 N.C. LEXIS 604 (1957).

The child is not a party to a separation agreement, and the parents cannot contract away the jurisdiction of the court, which is always alert in the discharge of its duty towards its wards, the children of the State whose personal property interests require protection. State v. Duncan, 222 N.C. 11 , 21 S.E.2d 822, 1942 N.C. LEXIS 3 (1942).

It is the court’s duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

But provisions of a valid separation agreement, and a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

A 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, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

And Parties Are Bound Thereby Until Court Orders Otherwise. —

Where judgment by confession purported to grant custody of child to one party, this judgment did not deprive the district court of jurisdiction to determine custody, but the parties, having agreed to it, were bound by its provisions until the court made some order for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Presumption as to Amount Mutually Agreed upon in Separation Agreement. —

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 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. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560, 1976 N.C. App. LEXIS 2383 (1976).

There is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon in a separation agreement is just and reasonable. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

Party to Separation Agreement Not Precluded from Bringing Action. —

When a case is properly before it, the court has the duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

Where judgment by confession placed custody issue before the court so that it retained jurisdiction to determine custody, it was error not to abate the subsequent action for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Effect of Custody Award on Consent Judgment. —

Where a consent judgment in an action for a divorce a mensa operated as a gift to the wife of an estate in the husband’s land, the fact that the court awarded custody of the children did not affect it. Morris v. Patterson, 180 N.C. 484 , 105 S.E. 25, 1920 N.C. LEXIS 118 (1920).

Trial court did not abuse its discretion in awarding joint custody to both parties. Church v. Church, 119 N.C. App. 436, 458 S.E.2d 732, 1995 N.C. App. LEXIS 475 (1995).

Modification of Custody Order. —

Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750 , 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

I.In General

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 50-13 , which prior to its repeal in 1967 dealt with custody and maintenance of children in actions for divorce.

Applicability. —

The plain language of G.S. 50-13.2(b) is referring to the party who is absent or has relocated with or without the children because of an act of domestic violence; therefore, a mother’s claim that the trial court violated G.S. 50-13.2(b) failed because that language did not apply to the situation since the mother had not relocated due to an act of domestic violence, or, to the extent the language of the section could apply, it would apply to the father who had relocated to another country. Thus, the trial court was required not to weigh the father’s absence or relocation against him in determining custody or visitation. Jordao v. Jordao, 273 N.C. App. 543, 849 S.E.2d 317, 2020 N.C. App. LEXIS 690 (2020).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Jurisdiction. —

When a divorce action is instituted, the court acquires jurisdiction over the children born to the marriage, and may hear and determine questions as to the custody and maintenance of the children both before and after final decree of divorce. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967).

Custody Proceedings Are Continuing. —

There is no requirement that each successive custody hearing starts with a “clean slate” and that the court cannot rely on the record previously generated. To the contrary, custody proceedings generally are continuing in nature. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

A judgment awarding custody is based upon the conditions found to exist at the time it is entered. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965).

Simultaneous Adoption and Custody Actions. —

Because the legislature has enunciated a public policy that every child should have a permanent plan of care, because adoption is more likely than a custody proceeding between non-parents to result in a permanent plan of care and because the superior court has jurisdiction over adoptions, that court’s jurisdiction supersedes that of the district court with regard to the custody of a child the subject of a simultaneous adoption and custody proceeding. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

In the absence of an order of consolidation when the same child is the subject of a simultaneous custody and adoption proceeding, both the superior and district courts do not have continuing jurisdiction to fully adjudicate the respective issues before them. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

The filing of an adoption petition in the superior court divests the district court of jurisdiction to adjudicate issues of custody with regard to a child who is the subject of an adoption petition. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

Upon the entry of an interlocutory order of adoption by the superior court, the jurisdiction of the district court with regard to the custody of the child who is the subject of the interlocutory order is in abeyance until such time as the interlocutory decree is vacated, the adoption petition is dismissed, or a final decree of adoption is entered. Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329, 1995 N.C. App. LEXIS 238 (1995).

Recommendation of Guardian Ad Litem. —

Pursuant to G.S. 7A-640 [see now G.S. 7B-901 and G.S. 7B-2501 ], the court may consider the recommendation of a guardian ad litem concerning the needs of a juvenile. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Mother Not Entitled to Proceeds of Forfeited Bond. —

A bond posted by father in custody dispute was deemed to be an appearance bond designed to guarantee his appearance before the court and as a penalty in the event of his failure to appear, and under N.C. Const., Art. IX, § 7 the county board of education was entitled to the clear proceeds of its forfeiture. Mussallam v. Mussallam, 321 N.C. 504 , 364 S.E.2d 364, 1988 N.C. LEXIS 9 (1988).

Provisions in Custody Orders. —

Provisions directing the parties to cooperate with one another and to refrain from conduct that will be detrimental to the child are commonly included in custody orders. Watkins v. Watkins, 120 N.C. App. 475, 462 S.E.2d 687, 1995 N.C. App. LEXIS 889 (1995).

Order requiring a custodial mother to move back to the county in which the parties had resided before separating to live in the marital home was set aside because, while the court could find the relative benefits of the children living with the father in one county or the mother in another county when making a primary custody determination, the order was not a “related matter” the general assembly gave trial courts the authority to decide. Kanellos v. Kanellos, 251 N.C. App. 149, 795 S.E.2d 225, 2016 N.C. App. LEXIS 1323 (2016).

Rights of Parents to Children’s Records. —

Trial court properly ordered that a mother share a child’s school and medical records with the father, as G.S. 50-13.2(b) provided that each parent have equal access to the records of the minor child involving the health, education, and welfare of the child. Young v. Young, 169 N.C. App. 31, 609 S.E.2d 795, 2005 N.C. App. LEXIS 539 , vacated, 360 N.C. 58 , 620 S.E.2d 674, 2005 N.C. LEXIS 1109 (2005).

Denial to a noncustodial mother of access to the medical, educational, and counseling records of the mother’s child was in error because the court’s findings of fact did not support a conclusion that it was in the best interest of the child to prevent the mother from accessing the records. While the mother’s behavior at the child’s school was disruptive, the findings did not indicate that the mother’s behavior made third-party professionals sufficiently concerned about their own safety, or have any other negative effect on the child. Paynich v. Vestal, 269 N.C. App. 275, 837 S.E.2d 433, 2020 N.C. App. LEXIS 12 (2020).

Collateral estoppel effect of findings in domestic violence protective order entered under G.S. 50B-1(a) , finding that the mother was responsible for the incident, collaterally estopped the finding in the custody case that the father was responsible for the incident; when the protective order was not appealed the collateral legal consequences of that order became final, precluding reconsideration of the order in the custody action under G.S. 50-13.2 . Doyle v. Doyle, 176 N.C. App. 547, 626 S.E.2d 845, 2006 N.C. App. LEXIS 517 (2006).

Trial court erred in a custody case in finding that the father had committed domestic violence because, in a prior domestic violence case, the court specifically found that the father had not committed domestic violence; G.S. 50-13.2(a) required the court in a custody case to consider domestic violence, but collateral estoppel prevented the court in the custody case from making findings which were contrary to the findings in the prior domestic violence action. Simms v. Simms, 195 N.C. App. 780, 673 S.E.2d 753, 2009 N.C. App. LEXIS 249 (2009).

Electronic Communication Not Equal to In-Person Visitation. —

G.S. 50-13.2 provided that electronic communication may not be used as a replacement or substitution for custody or visitation and, thus, the plaintiff’s contention that electronic communication was a form of visitation equal to that of in-person visitation was incorrect. Deanes v. Deanes, 269 N.C. App. 151, 837 S.E.2d 404, 2020 N.C. App. LEXIS 7 (2020).

II.Welfare of Child

The welfare of the child is the paramount consideration in custody matters. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); Williams v. Williams, 18 N.C. App. 635, 197 S.E.2d 629, 1973 N.C. App. LEXIS 1962 (1973); Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974); Harrington v. Harrington, 286 N.C. 260 , 210 S.E.2d 190, 1974 N.C. LEXIS 1225 (1974); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977).

The best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and neither of these rights should be permitted to jeopardize the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Although at one time under the common law the father was generally entitled to the custody of minor children, the courts at the present time almost invariably adhere to the principle that the welfare or best interest of the child is the paramount consideration. This was the rule adhered to by North Carolina courts for many years, and is now prescribed by this section. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

The child’s welfare is the principal consideration in determining custody matters. In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228, 1969 N.C. App. LEXIS 1137 (1969).

The primary consideration in custody cases is the welfare of the child or children involved. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140, 1969 N.C. App. LEXIS 1194 (1969).

An order for custody of a minor child cannot be affirmed without a clear indication that it rested on a determination of what would be in the child’s best interest. That is the paramount consideration in custody cases. In re DiMatteo, 62 N.C. App. 571, 303 S.E.2d 84, 1983 N.C. App. LEXIS 2934 (1983).

And the Polar Star by Which Court Is Guided. —

The welfare of the child is the polar star by which the discretion of the court is to be guided. In re Lewis, 88 N.C. 31 , 1883 N.C. LEXIS 13 (1883); Brake v. Brake, 228 N.C. 609 , 46 S.E.2d 643, 1948 N.C. LEXIS 281 (1948); Finley v. Sapp, 238 N.C. 114 , 76 S.E.2d 350, 1953 N.C. LEXIS 387 (1953); Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 13 11 (1966); Chriscoe v. Chriscoe, 268 N.C. 554 , 151 S.E.2d 33, 1966 N.C. LEXIS 1254 (1966); In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524, 1968 N.C. App. LEXIS 903 (1968); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, 1972 N.C. App. LEXIS 2167 , cert. denied, 281 N.C. 622 , 190 S.E.2d 465, 1972 N.C. LEXIS 1126 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, 1973 N.C. App. LEXIS 1442 , cert. denied, 283 N.C. 585 , 196 S.E.2d 809, 1973 N.C. LEXIS 1011 (1973); Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513, 1975 N.C. App. LEXIS 2427 (1975); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, 1975 N.C. App. LEXIS 2312 , cert. denied, 287 N.C. 664 , 216 S.E.2d 911, 1975 N.C. LEXIS 1175 (1975); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

The welfare of the child is controlling in determining the right to custody of the child as between its divorced parents. Hardee v. Mitchell, 230 N.C. 40 , 51 S.E.2d 884, 1949 N.C. LEXIS 545 (1949).

This section expresses the policy of the State that the best interest and welfare of the child is the paramount and controlling factor to guide the judge in determining the custody of a child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

As the Determining Factor. —

The children of the marriage become the wards of the court, and their welfare is the determining factor in custody proceedings. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965); Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969).

The welfare of the children is the determining factor in custody proceedings, and an award of custody based on that factor will be upheld when supported by competent evidence. In re Poole, 8 N.C. App. 25, 173 S.E.2d 545, 1970 N.C. App. LEXIS 1471 (1970).

And the Guiding Principle. —

The guiding principle to be used by the court in a custody hearing is the welfare of the children involved. While this guiding principle is clear, decision in particular cases is often difficult, and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969); Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981).

The trial court should primarily be concerned with the welfare of the child in deciding which party before it should be charged with the enormous responsibilities of custodianship of the child. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

In a custody proceeding, it is not the function of the court to punish or reward a parent by withholding or awarding custody of minor children; the function of the court in such a proceeding is to diligently seek to act for the best interests and welfare of the minor child. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

The best interest of the child is the overriding factor in custody determinations. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979).

Joint custody and any other custody award must include findings of fact which support such determination of child’s best interests. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627, 1990 N.C. App. LEXIS 485 (1990), aff'd, 328 N.C. 324 , 401 S.E.2d 362, 1991 N.C. LEXIS 178 (1991).

Considered in Light of All Surrounding Circumstances. —

The best interest of the child, in light of all the surrounding circumstances, is the paramount consideration which must guide the court in awarding custody of a minor child. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983).

Tender Years Presumption Abolished. —

Trial court erred in entering a custody order concerning the parties’ child; the trial court improperly relied on the tender years presumption in granting custody to the mother, as that presumption had been abolished, and G.S. 50-13.2(a) required that the custody decision be based solely on the best interests of the child, and G.S. 8C-1 , Rule 201(b) did not allow the trial court to take judicial notice of the assumptions underlying an abolished doctrine in order to resurrect the doctrine. Greer v. Greer, 175 N.C. App. 464, 624 S.E.2d 423, 2006 N.C. App. LEXIS 183 (2006).

Trial court did not apply tender years presumption in awarding a mother primary physical and legal custody of the parties’ child because there was nothing in the record to suggest the trial court relied on a psychologist’s affidavit or the mother’s testimony regarding a “special bond” in awarding the mother custody, and, in fact, the trial court specifically noted the child was securely bonded to the father. Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299, 2012 N.C. App. LEXIS 1312 (2012).

The trial judge is entrusted by this section with the delicate and difficult task of choosing an environment which will, in his judgment, best encourage full development of the child’s physical, mental, emotional, moral and spiritual faculties. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

Any evidence of child abuse is of the utmost concern in determining whether the grant of custody to a particular party will best promote the interest and welfare of the child, and any evidence of such abuse must be resolved by the trial court in its findings of fact. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

Evidence of paternity may properly be considered in determining the best interests of the children. Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661, 1993 N.C. App. LEXIS 1298 (1993).

A natural parent’s constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Acts of Domestic Violence Between Parties. —

Trial court’s best interests of the children determination under G.S. 50-13.2(a) was supported by its findings of fact, including its finding that the father had “body slammed” the mother 20 to 50 times during the marriage, and threatened to punch his brother-in-law in the nose. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901, 2008 N.C. App. LEXIS 202 (2008).

Although a mother voluntarily dismissed her domestic violence complaint at the time a memorandum of judgment was entered regarding custody, a trial court did not abuse its discretion in considering the claim when the father filed a motion for modification of custody, pursuant to G.S. 50-13.7 , because “acts of domestic violence between the parties” was one of the factors the trial court was to consider, pursuant to G.S. 50-13.2(a), when making findings as to the best interests of the child. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679, 2011 N.C. App. LEXIS 2242 (2011).

In a mother’s suit for the issuance of a domestic violence protective order, it was error to deny an out of state father’s motion to dismiss for lack of personal jurisdiction based on a theory, adopted in other states, distinguishing between “affirmative” and “prohibitive” orders because (1) that theory was not adopted, and (2) the father’s substantial rights were implicated, as, inter alia, the issuance of such an order could affect the father’s right to custody of the child. Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653, 2016 N.C. App. LEXIS 925 (2016).

III.Right of Parents to Custody

A.As Against Third Persons

Due Process. —

If a natural parent’s conduct has not been inconsistent with his or her constitutionally protected status, application of the “best interest of the child” standard in a custody dispute with a nonparent would offend the Due Process Clause. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Conduct inconsistent with a parent’s protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the “best interest of the child” test without offending the Due Process Clause. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Child’s biological mother voluntarily relinquished her paramount parental right to make decisions under the due process clause when she entered into a parenting agreement with her former domestic partner to hold herself, the partner, and the child out as a family unit. The voluntary relinquishment of rights was inconsistent with her paramount rights under the due process clause. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58, 2008 N.C. App. LEXIS 908 (2008).

Parents Have Legal Right to Custody of Their Children. —

Parents, including the mother of an illegitimate child, have the legal right to have the custody of their children unless clear and cogent reasons exist for denying them this right. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interest and welfare of the children clearly require it. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580, 1972 N.C. App. LEXIS 2127 (1972).

Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of the parties’ minor children. This right is not absolute, and it may be interfered with or denied, but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Vaughn v. Tyson, 14 N.C. App. 548, 188 S.E.2d 614, 1972 N.C. App. LEXIS 2171 (1972).

Where mother abandons any claim she may have to the custody of her daughter, father alone has the natural and legal right to the custody of the child, unless for substantial and sufficient reasons the interest and welfare of the child require that he be denied that right. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969).

The mother of an illegitimate child is its natural guardian, and as such, has a legal right to its custody, care and control, if she is a suitable person, even though others may offer more material advantages in life for the child. But this rule is not absolute, and the custody of an illegitimate child may be taken from the mother and placed elsewhere when it clearly and manifestly appears that the best interests and welfare of the child demand it. Wall v. Hardee, 240 N.C. 465 , 82 S.E.2d 370, 1954 N.C. LEXIS 448 (1954).

Absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail. Petersen v. Rowe, 337 N.C. 397 , 445 S.E.2d 901, 1994 N.C. LEXIS 399 (1994).

Which Will Be Interfered with Only When Clearly Required. —

Where one parent is dead, the surviving parent has a natural and legal right to custody and control of the parties’ minor children. This right is not absolute, but it may be interfered with or denied only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

For Parent’s Misconduct or Child’s Welfare. —

The law presumes that the best interests of a child will be served by committing it to the custody of a parent, when the parent is a suitable person; this presumption is not overcome merely by showing that some third person can give the child better care and greater comforts and protection than the parent. A parent’s right to custody of a child may be forfeited only by misconduct or by other facts which substantially affect the child’s welfare. In re Jones, 14 N.C. App. 334, 188 S.E.2d 580, 1972 N.C. App. LEXIS 2127 (1972).

But Child’s Welfare Is the Paramount Consideration. —

While the law presumes that the best interest of a child will be served by committing it to the custody of a parent, when the parent is a suitable person, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents, must be deferred or subordinated. Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983).

Parent’s Love Must Yield to Child’s Best Interests. —

The child’s welfare is the paramount consideration, and a parent’s love must yield to another if, after judicial investigation, it is found that the best interest of the child is subserved thereby. Greer v. Greer, 5 N.C. App. 160, 167 S.E.2d 782, 1969 N.C. App. LEXIS 1299 (1969).

The “paramount consideration” and “polar star” which have long governed and guided the discretion of the trial judges are the welfare and needs of the child, not the persons seeking his or her custody, and even parental love must yield to the promotion of those higher interests. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

The natural parent is presumed to be the appropriate custodian of his or her child, as opposed to third persons, and should not be deprived of custody merely because the child could be better cared for in a material sense. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

But This Presumption May Be Rebutted. —

While it is presumed that it is in the child’s best interest to be placed with a natural parent, this presumption may be rebutted by a circumstance which would substantially affect the child. Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979).

The primary concern of the trial court in a custody matter, as mandated by subsection (a) of this section, is the welfare of the child, and this concern outweighs the presumption favoring the award of custody to a natural parent. In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

The presumption in favor of the natural parents is rebuttable. Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

Although there is a rebuttable presumption in favor of a natural parent, it is not necessary to prove unfitness in order to overcome the presumption. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

A court must award custody based only upon the best interest and welfare of the child. A court must have discretion to determine the best interest of a child, and should not be restricted to awarding custody to a natural parent in the absence of a finding of unfitness. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

It is not necessary to prove a natural parent unfit in order to award custody to a third party. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79, 1994 N.C. App. LEXIS 397 (1994).

Custody May Be Granted to Third Person for Sufficient Reasons. —

The welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third person for good and sufficient reasons. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716, 1983 N.C. App. LEXIS 3559 (1983).

A child’s former care giver stated a claim as against the child’s father for custody of the child, where the father’s former companion alleged that the father had taken actions inconsistent with his protected status as a parent, including that the father had placed the child in his parents’ care and that they could not properly care for the child’s diabetes, resulting in hospitalization and potentially serious and permanent health consequences, and that the father had relinquished care of the child to others, including herself, on numerous occasions. Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891, 1998 N.C. App. LEXIS 946 (1998).

Fitness of Parent. —

Mother’s convictions for driving while intoxicated and child’s developmental problems were significant and relevant to issue of mother’s fitness as a parent because they indicated her inability to care for the child adequately and to provide for the child’s welfare; additionally, the facts that she had substance abuse problems, did not respect authority, was unable to recognize her child’s developmental problems, and was incapable of caring for the child’s welfare supported the conclusion that she was an unfit parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

The State failed to show that the father was unfit, as against the child’s grandparents, to have custody of his child where he testified that if he were awarded custody of the child he would be willing to prohibit his brother, who was convicted for taking indecent liberties with a minor, from staying at his house and interacting with the child; where his own convictions were too remote to affect his fitness or were unrelated thereto; where he already had considerable experience in taking care of children; where his boss of 13 years and his volunteer supervisor, both described him as responsible, dependable, reliable and hardworking; and where he actively engaged in legal proceedings for approximately two years, evidencing a long-term commitment to attaining custody. Adams v. Tessener, 141 N.C. App. 64, 539 S.E.2d 324, 2000 N.C. App. LEXIS 1289 (2000), rev'd, 354 N.C. 57 , 550 S.E.2d 499, 2001 N.C. LEXIS 834 (2001).

Parent Need Not Be Found Unfit. —

Although there is a traditional preference for biological parents, the welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents must be deferred or subordinated, and the trial judge’s discretion is such that he is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

The trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983); In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

While the fitness of a natural parent is of paramount significance in determining the best interests of the child in custody contests, it is not always determinative in itself. It is entirely possible that a natural parent may be a fit and proper person to care for the child, but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978).

Fitness and Actions of Parent in Relationship with Domestic Partner Relevant. —

While a district court could have concluded that the fitness of a child’s biological mother warranted that she have sole custody, the district court was not required to do so where evidence indicated that the mother had voluntarily relinquished her due process rights to solely make decisions in the child’s life, intended that her former domestic partner become a de facto parent, and the partner had established a significant bond with the child. Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58, 2008 N.C. App. LEXIS 908 (2008).

Temporary Relinquishment of Custody. —

There are circumstances where the responsibility of a parent to act in the best interest of his or her child would require a temporary relinquishment of custody; however, to preserve the constitutional protection of parental interests in such a situation, the parent should notify the custodian upon relinquishment of custody that it is temporary and avoid conduct inconsistent with the protected parental interests. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

In making custody decisions between a parent and a grandparent or other third party, the court must balance two doctrines. The first, the “parental right” doctrine, holds that ordinarily and in the absence of particular circumstances, the custody of a child should be given to the parent in preference to the grandparent, if the parent is found to be fit to have custody and can supply a proper home. The second doctrine, the “best interests of the child” doctrine, holds that custody should be awarded in accordance with the best interests of the child regardless of the fitness of the parents. Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983).

To Whom Custody May Be Awarded. —

If the mother and the father are both fit and proper persons to have custody of children, under ordinary circumstances the court would then proceed to determine whether the best interest, health and welfare of the children would be served by awarding custody to the mother or father. If not, then the court must deal with someone or an agency over whom the court has control. But an order awarding custody, in effect, to third persons who are not parties to the proceeding, not a public institution, and not bound by the court’s order, must be reversed. Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833, 1970 N.C. App. LEXIS 1600 (1970).

Award of Custody to Grandparents. —

Where the custody of a minor child was awarded to the mother in a divorce proceeding, and subsequently, both parents, who were deemed proper and fit persons to have the custody of such child, moved out of the State, and the child was left by the mother with the child’s maternal grandparents, residents of the State and highly proper persons to rear the child, upon petition of the father for custody of the child the court had authority under this section to order that the child continue in the custody of the grandparents. Walker v. Walker, 224 N.C. 751 , 32 S.E.2d 318, 1944 N.C. LEXIS 242 (1944).

Where grandmother was a good housekeeper and showed the ability to care for the children the trial court erred in denying and dismissing grandmother’s petition for custody on the basis of its “serious concerns” about her parenting skills because of problems experienced by her daughter. Smith v. Alleghany County Dep't of Social Servs., 114 N.C. App. 727, 443 S.E.2d 101, 1994 N.C. App. LEXIS 496 (1994).

Where there are unusual circumstances and the best interests of the child justify such action, the court may refuse to award custody to either the mother or father and instead award the custody of the child to its grandparents or others. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

For case affirming order transferring custody to paternal grandmother and awarding visitation rights to both mother and father, see Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363, 1986 N.C. App. LEXIS 2294 (1986).

Grandparents’ Rights When Family Intact. —

Under G.S. 50-13.1(a) , 50-13.2(b1), 50-13.2A, 50-13.5(j), a grandparent’s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative—the “intact family” rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child’s family is not intact before the grandparent can intervene to request visitation with his grandchild—G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children’s family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486, 2003 N.C. App. LEXIS 729 (2003).

Socioeconomic status of paternal grandmother, who intervened in custody case, was irrelevant to issue of mother’s fitness as a parent. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

It is only when the custody of a child is “in issue” or “being litigated” that the grandparents are entitled to relief pursuant to subsection (b1). Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251, 1996 N.C. App. LEXIS 1069 (1996).

Domestic Partner Denied Custody, Parental Status, and Reinstatement of Visitation Schedule. —

Trial court properly denied defendant’s claims for joint custody, recognition of parental status, and reinstatement of the original visitation schedule because plaintiff, defendant’s former domestic partner, did not engage in conduct inconsistent with plaintiff’s constitutionally protected status as the legal parent and did not allow defendant to function as a parent. Estroff v. Chatterjee, 190 N.C. App. 61, 660 S.E.2d 73, 2008 N.C. App. LEXIS 905 (2008).

Award to Department of Social Services. —

For case involving sexual abuse of daughters by father, in which children were adjudicated abused and neglected, and in which award of custody to the department of social services, with mother being given physical custody of one daughter and liberal visitation with the other daughter, who was placed with her grandmother, pending review in 60 days, was approved, see In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Foster Parents Have No Standing to Bring Custody Action. —

Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department’s or agency’s exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

But Custody May Be Awarded to Foster Parents. —

Having acquired subject matter jurisdiction, trial court, guided by the best interests of the child, had broad dispositional powers, including the power to award legal custody of child to its foster parents. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

The case of Oxendine v. Department of Social Servs., 303 N.C. 699 , 281 S.E.2d 370 (1981) does not prohibit the transfer of legal care, custody and control of a foster child to its foster parents. Oxendine stands for the proposition that foster parents have no standing to bring a custody action pursuant to G.S. 50-13.2 et seq. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Intervention by Foster Parents. —

In proceeding brought by DSS in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child’s foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986) (distinguishing) Oxendine v. Department of Social Servs., 303 N.C. 699 , 281 S.E.2d 370 (1981).

It was improper for a trial court to apply a G.S. 50-13.2(a) best interest analysis to a domestic partner’s application for joint custody without first determining that a natural parent’s conduct was inconsistent with her constitutionally protected status as a parent. Heatzig v. MacLean, 191 N.C. App. 451, 664 S.E.2d 347, 2008 N.C. App. LEXIS 1480 (2008).

Claim for Custody Held Not Frivolous. —

Where there was no indication at trial that the grandparents in fact did not wish to obtain custody of the children or that their claim was made in bad faith, the fact that the grandparents had originally asked for visitation did not make their later claim for custody violative of G.S. 1A-1 , Rule 11. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Remand Where Custody Awarded to One Who Was Not a Party. —

While the court, upon proper findings and conclusions, may award the custody of a minor child to any such person, agency or institution as will best promote the interest and welfare of the child, where the court awarded custody of the child to one who was not a party to the proceeding, the proceeding would be remanded with directions that the trial court issue the necessary notices and orders to make such individual a party to the action, to the end that the court would have effective jurisdiction over her person. In re Edwards, 25 N.C. App. 608, 214 S.E.2d 215, 1975 N.C. App. LEXIS 2336 (1975).

Reversal of Award to Third Party. —

Where in an initial custody determination, the trial court conducted the “best interest and welfare” analysis, and based solely on that analysis, awarded custody of the minor child to defendant (friend of mother who had cared for child since birth) rather than the plaintiff/father, the child’s natural parent, the award of custody on this basis was error and must be reversed. Lambert v. Riddick, 120 N.C. App. 480, 462 S.E.2d 835, 1995 N.C. App. LEXIS 890 (1995).

B.As Between Parents

Conviction of Abandonment Did Not Preclude Award of Custody. —

The fact that father had been convicted of abandonment of his children and ordered to provide for their support did not preclude the court from finding, upon a hearing of a subsequent motion for the custody of the children in a divorce action, that father was a fit and suitable person to have custody of the children, when there was uncontradicted evidence upon the hearing that father had a good reputation in the community in which he lived. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Effect of Prior Order of Incompetence. —

In a controversy between husband and wife for custody of minor children of the marriage, it is error for the trial court to award custody to the husband on the sole ground that the wife has prior to that time been judged mentally incompetent. A prior court order which judicially declares a parent to be incompetent is not sufficient in and of itself to establish a parent’s present unfitness to have a child or children; rather, this section requires a full, factual determination of all the circumstances in the case before a proper order may be entered by the court. Price v. Price, 42 N.C. App. 66, 255 S.E.2d 652, 1979 N.C. App. LEXIS 2739 (1979).

Relevance of Evidence of Adultery. —

The court committed prejudicial error in refusing to allow plaintiff to introduce evidence of defendant’s adultery at a hearing on a custody motion. While evidence of adultery does not impel a finding of unfitness of the adulterous parent, it is relevant upon an inquiry of fitness of a person for the purpose of awarding custody of minor children to him or to her. Darden v. Darden, 20 N.C. App. 433, 201 S.E.2d 538, 1974 N.C. App. LEXIS 2457 (1974); Hunt v. Hunt, 29 N.C. App. 380, 224 S.E.2d 270, 1976 N.C. App. LEXIS 2484 (1976). See also, In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

Joint Legal Custody Appropriate. —

In addition to findings regarding parties’ financial status and what would best serve interests of children, court had before it plaintiff’s admission that she indeed thought defendant to be fit and proper person as stated in her verified reply to defendant’s answer and counterclaim. Thus, joint legal custody was appropriate. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627, 1990 N.C. App. LEXIS 485 (1990), aff'd, 328 N.C. 324 , 401 S.E.2d 362, 1991 N.C. LEXIS 178 (1991).

Joint Legal Authority. —

Trial court erred in dividing decision-making responsibilities between the parties after awarding joint legal custody because the trial court had not made the necessary findings of fact to warrant a division of joint legal authority; the trial court’s mere findings that the parties had a tumultuous relationship did not satisfy the required findings. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901, 2008 N.C. App. LEXIS 202 (2008).

The fact that mother’s paramour had been living with mother and minor child since the parties’ separation was insufficient, standing alone, to determine custody; the court must consider all the facts of the case and decide the issue in the best interests of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Award Where Both Parents Are Found Fit — Generally. —

When there has been a finding that both parents are fit and suitable to have custody, the judge’s order is conclusive when supported by evidence. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

Same — Award to Father. —

When the court finds that both parties are fit and proper persons to have custody, and then adjudges that it is in the best interest of the child for the father to have custody, such holding will be upheld; but it must be supported by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

When the court finds that both parties are fit and proper persons to have custody of the children involved, and then finds that it is in the best interests of the children for the father to have custody of said children, such holding will be upheld when it is supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833, 1970 N.C. App. LEXIS 1600 (1970).

Where the evidence was sufficient to support the court’s finding that father was a suitable person to have custody of his son and that the best interests of the child would be served by awarding the child’s custody to him, order awarding the custody to the father was proper, even though the evidence would also have supported a finding that the child’s mother was a fit and suitable person and that the best interests of the child would be served by awarding custody to her. In re White, 262 N.C. 737 , 138 S.E.2d 516, 1964 N.C. LEXIS 732 (1964).

Age of Parents. —

All else being equal, a 55-year-old person has a shorter remaining life span than a 33-year-old person and the consideration of continuity and stability in the life of a child will logically lead a judge to consider the age of a parent. Consideration of all aspects of both parents’ lives, including the potential for continuity and stability, is necessary to promote the governmental interest of granting custody on the best interests of the child. Phelps v. Phelps, 337 N.C. 344 , 446 S.E.2d 17, 1994 N.C. LEXIS 415 (1994).

A passing comment about a party’s age, when determining a child’s best interest in accordance with the statute, does not constitute an unconstitutional classification in violation of a party’s equal protection rights. Phelps v. Phelps, 337 N.C. 344 , 446 S.E.2d 17, 1994 N.C. LEXIS 415 (1994).

Award to Father on Finding of Changed Circumstances. —

Trial judge did not abuse his discretion by ruling that a material change in circumstances had occurred with the increased age of younger child, who had been awarded previously to the mother, since the child indicated clearly his desire to stay with his father, who also had custody of his elder brother. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

Where father failed to offer evidence of mother’s adultery at divorce trial, but after the divorce moved for a change of custody on that ground, the trial court’s reassignment of custody of the child to father due to a material change of circumstances since the date of the divorce was not erroneous merely because the crucial circumstances, e.g., the mother’s adultery, existed before divorce. The child should not be placed in the custody of an unfit parent merely because the other parent failed to introduce evidence at the proper stage of the litigation. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

Award to Father on Condition That Physical Custody Be in Grandparents. —

Where the court’s conclusions that the mother was an unfit person to have custody of the children and that the father was a fit and suitable person to have their custody was supported by the findings, but neither the father nor the paternal grandparents had a suitable home for the children, and that the maternal grandparents, with whom the children were then living, had such a home, an order awarding the custody of the children to the father on condition that the physical custody of the children be vested in their maternal grandparents and that the father pay for their support would not be disturbed on appeal, the welfare of the children being the determinative factor in the award of custody. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Award of Custody to Father Held Proper. —

Trial court did not err in concluding that it would be in the best interest of minor child for her custody to be placed with defendant father where, pursuant to separation agreement, plaintiff mother gave defendant custody of the child and agreed to assist with medical and dental bills on behalf of the child; the child had lived with defendant at all times since her birth and lived solely with defendant since the parties’ separation; plaintiff rarely visited the child following the parties’ separation; and plaintiff admitted that defendant had done a good job of looking after the child since their separation. Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460, 1981 N.C. App. LEXIS 2566 (1981).

Findings on Award of Custody to Mother Held Sufficient. —

Findings that the parties had been married and divorced, that the wife was a person of good character, resident in this State, that the husband was financially responsible, and that the best interest of the minor child of the marriage would be promoted by awarding its custody to the wife were sufficient to sustain a decree awarding its custody to her and requiring the husband to make contributions for the support of the child. Hardee v. Mitchell, 230 N.C. 40 , 51 S.E.2d 884, 1949 N.C. LEXIS 545 (1949).

Award to Mother Upheld. —

Where the trial court found, upon supporting evidence, that the mother was now a stable, fit, and suitable custodian of her children, and that their best interests required that their custody be awarded to her, the Supreme Court would affirm the award of custody. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

Trial court did not abuse its discretion in modifying a custody order to grant joint legal custody to a mother and father with the mother having primary custody because there had been a substantial change in circumstances affecting the child and modification was in the child’s best interests pursuant to G.S. 50-13.2(a); father had moved out of state with the child, had facilitated renewed contact with the child’s maternal grandfather despite a court order prohibiting the contact, and the child had been harmed by a dog while in the father’s care. Pass v. Beck, 210 N.C. App. 192, 708 S.E.2d 87, 2011 N.C. App. LEXIS 300 (2011).

Trial court properly entered an initial custody order awarding primary and legal custody of the parties’ child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial’s parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent’s fitness as a parent, which was caused by the noncustodial’s failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561, 2016 N.C. App. LEXIS 298 (2016).

Custody of Child Upheld Where Father Never Visited. —

Where plaintiff mother had had de facto custody of five-year old child since his birth, and defendant, who had acknowledged paternity of the child when he was there, had not visited the child in a substantial length of time, nor had he requested visitation privileges or custody, formal award of custody to mother would be upheld. Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249, 1988 N.C. App. LEXIS 173 (1988).

Illegitimate Child. —

As to the custody of an illegitimate child, see Jolly v. Queen, 264 N.C. 711 , 142 S.E.2d 592, 1965 N.C. LEXIS 1265 (1965).

By its plain language, G.S. 50-13.2(a) clearly abrogates the common-law presumption vesting custody of an illegitimate child in the child’s mother. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

Illegitimate child’s father who has acknowledged his paternity under G.S. 110-132(a) and whose conduct is consistent with his right to care for and control his child has a right to custody of his illegitimate child legally equal to that of the child’s mother, and, pursuant to G.S. 50-13.2 , if the best interest of the child is served by placing the child in the father’s custody, he is to be awarded custody of that child. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

As the common-law rule that custody of an illegitimate child presumptively vested in the mother was abrogated by G.S. 50-13.2(a), the trial court properly applied the “best interest of the child” standard in awarding custody to the child’s father, who had acknowledged his paternity under G.S. 110-132(a), paid child support without a court order, and provided that child with a stable and structured life. Rosero v. Blake, 357 N.C. 193 , 581 S.E.2d 41, 2003 N.C. LEXIS 605 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78, 2004 U.S. LEXIS 1045 (2004).

In applying the best interest of the child standard to award joint custody of an illegitimate child to the parents, district court applied the correct standard as between the parents, because the common law presumption in favor of awarding custody of the illegitimate child to the mother was abrogated by G.S. 50-13.2 and the case law. David v. Ferguson, 160 N.C. App. 89, 584 S.E.2d 102, 2003 N.C. App. LEXIS 1665 (2003).

For case as to former preference that mother be given custody, see Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

IV.Visitation Rights

Court May Divide Custody Between Parents or Award General Custody Subject to Visitation Privileges. —

The trial court has discretionary power either to divide custody between contending parents for alternating periods, or to award general custody to one parent, subject to visitation privileges in favor of the unsuccessful parent. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953).

The standard by which the court is guided in visitation matters is the child’s best interest. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Burden of Proof. —

Grandparents seeking visitation rights had the burden of proving that the award of visitation was in the best interest of the children; therefore, where trial judge reversed the burden, so that the mother had to prove that the visitation was bad for the children, the judge was in error. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Findings as to Visitation. —

To support an award of visitation rights, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the party is a fit person to visit the child and that such visitation rights are in the best interest of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

Where the trial judge specifically considered a child’s best interests in determining custody and visitation in accordance with G.S. 50-13.2(a) and the evidence supported the trial court’s findings, the trial court did not abuse its discretion by ordering visitation between the minor child and the father. Pass v. Beck, 156 N.C. App. 597, 577 S.E.2d 180, 2003 N.C. App. LEXIS 196 , cert. denied, 357 N.C. 252 , 582 S.E.2d 277, 2003 N.C. LEXIS 706 (2003).

Order for Professional Consultation Within Court’s Discretion. —

Where trial court found defendant’s contact with his minor child had been minimal, although he was fit and proper to have visitation rights, consultation with plaintiff and defendant by a third-party professional could benefit the court in awarding specific visitation rights; therefore, there was no abuse of discretion in the court’s ordering the consultation prior to its consideration of visitation rights. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179, 1989 N.C. App. LEXIS 622 (1989).

Visitation Rights to Parent Restricted. —

Trial court properly entered an initial custody order awarding primary and legal custody of the parties’ child to one parent and supervised visitation to the other parent, until such time as the court was able to gather more evidence of the noncustodial’s parenting abilities. The trial court had authority to base its custody determination in part on its inability to determine the noncustodial parent’s fitness as a parent, which was caused by the noncustodial’s failure to answer questions regarding allegations of child pornography. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561, 2016 N.C. App. LEXIS 298 (2016).

When Visitation May Be Denied. —

A parent’s right of visitation with his or her child is a natural and legal right, and when awarding custody of a child to another, the court should not deny a parent’s right of visitation at appropriate times unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child’s welfare. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

The grandmother did not have standing under this section to seek visitation with her grandchildren, where the children had been adopted by their biological aunt and her husband, and custody was not an issue. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226, 1998 N.C. App. LEXIS 1544 (1998).

Suspension of Visitation Due to Pandemic. —

Trial court’s award and temporary suspension of mother’s supervised visitation in favor of weekly video contact was affirmed; in light of mother’s criminal history and abusive behavior toward her social worker, the trial court found the child’s best interests were best served by limiting mother to visitation at a supervised visitation facility, and with it closed due to the pandemic, the trial court temporarily suspended visitation until it became available. This did not amount to a replacement or substitution for visitation. In re K.M., 2021-NCCOA-232, 277 N.C. App. 592, 861 S.E.2d 10, 2021- NCCOA-232, 2021 N.C. App. LEXIS 235 (2021).

Determination of Visitation Rights May Not Be Delegated. —

If the court finds that the parent has by conduct forfeited the right of visitation or if the court finds that the exercise of the right would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, his or her child; but the court may not delegate this authority to the custodian. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Court Should Safeguard Visitation Rights by Provision in Order. —

If the court does not find that a parent has by conduct forfeited the right of visitation and does not find that the exercise of the right would be detrimental to the best interest and welfare of the child, the court should safeguard the parent’s visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Enforcement of Visitation Orders. —

Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in this section, that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Receipt of Support May Not Be Conditioned on Visitation. —

A trial judge does not have authority to condition a minor child’s receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

District court was authorized to grant the father of an illegitimate child visitation privileges and to punish the mother for refusing to allow the father to visit his illegitimate child. Conley v. Johnson, 24 N.C. App. 122, 210 S.E.2d 88, 1974 N.C. App. LEXIS 1947 (1974).

Grant of Visitation Rights to Homosexual Father. —

The trial court did not err in granting a father who was homosexual unsupervised overnight visitation rights with his minor son. Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775, 1979 N.C. App. LEXIS 3259 (1979).

Grandparents May Not Be Awarded Visitation Rights When Custody Is Not in Issue. —

While subsection (b1) of this section authorizes the court to provide for the visitation rights of grandparents when the custody of minor children is being litigated, it does not authorize the court to enter such an order when the custody of the children is not in issue. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662, 1988 N.C. App. LEXIS 298 (1988).

This section and G.S. 50-13.5 and G.S. 50-13.2 A must be read in conjunction with G.S. 50-13.1(a) so as to harmonize them and give effect to a consistent legislative policy. Under them, a grandparent’s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative. McIntyre v. McIntyre, 341 N.C. 629 , 461 S.E.2d 745, 1995 N.C. LEXIS 409 (1995).

Standing to Seek Grandparent Visitation. —

Mother’s motion to dismiss grandparents’ motion for visitation was properly denied because, although the parents had entered into a consent judgment in the underlying child custody dispute, the custody of the child was still “in issue” and “being litigated” by the parents when the grandparents moved to intervene, and thus, under G.S. 50-13.2(b1), the grandparents had standing to intervene at the time; the resolution of the custody dispute between the parents did not wipe out the grandparents’ claim. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775, 2009 N.C. App. LEXIS 449 (2009).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father’s death and the child had not been adopted by a stepparent or relative. Graham v. Jones, 270 N.C. App. 674, 842 S.E.2d 153, 2020 N.C. App. LEXIS 249 (2020).

Paternal grandparents had statutory standing to seek permanent visitation rights, notwithstanding that the father had died, as they had been allowed to intervene when custody between the father and the mother was in dispute. Alexander v. Alexander, 276 N.C. App. 148, 856 S.E.2d 136, 2021- NCCOA-61, 2021 N.C. App. LEXIS 68 (2021).

Grandparent Had No Rights to Proceed. —

There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S. 50-13.1(a) , this section, G.S. 50-13.2 A, or G.S. 50-13.5(j). Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214, 2000 N.C. App. LEXIS 158 (2000).

Grandparents Had Right to Intervene in Pending Custody Action. —

In a child custody action, the order granting intervention to the maternal grandparents on ground there was a pending matter regarding future visitation before the court was proper; because the issue of the mother’s visitation was still pending, the custody of the child was still “in issue” and was “being litigated” by the parents. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578, 2009 N.C. App. LEXIS 109 (2009).

Trial court erred in concluding a grandmother’s visitation rights under a prior custody order did not survive termination of a mother’s parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother’s parental rights did not extinguish the grandmother’s court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d 236, 2019 N.C. App. LEXIS 216 (2019).

Insufficient Findings to Support Order for Grandparent Visitation. —

Remand of order granting grandparent visitation was necessary because the trial court made no explanation in its findings of fact as to why it determined that it was preferable to take the majority of the grandparents’ vacation visitation time out of mother’s custodial time; moreover, it was unclear that the trial court considered the possible interaction between the parents’ consent judgment and its order awarding visitation to the grandparents. Quesinberry v. Quesinberry, 196 N.C. App. 118, 674 S.E.2d 775, 2009 N.C. App. LEXIS 449 (2009).

As parents with lawful custody of their children have the prerogative of determining with whom they shall associate. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662, 1988 N.C. App. LEXIS 298 (1988).

Electronic Video Communication. —

In proceedings wherein a five-year-old child was adjudicated neglected, the trial court erred in denying the mother in-person visitation and permitting only electronic video communication, G.S. 50-13.2(e), because the court failed to find the mother forfeited her right to visitation or that visitation was not in the child’s best interest, G.S. 7B-905(c). In re T.R.T., 225 N.C. App. 567, 737 S.E.2d 823, 2013 N.C. App. LEXIS 171 (2013).

Visitation Rights to Parent In Foreign Country. —

Trial court, when it awarded one parent in North Carolina the primary physical care and custody of the parties’ minor child, properly awarded visitation privileges to the other parent, who was a citizen and resident of Canada and a missionary in Malawi, because the court considered the factors relevant to the child’s best interest, including the characteristics of the parties and the one parent’s concerns about the possible dangers to the child if the child were to travel to Malawi. Burger v. Smith, 243 N.C. App. 233, 776 S.E.2d 886, 2015 N.C. App. LEXIS 816 (2015).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. —

Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, 271 N.C. App. 172, 843 S.E.2d 306, 2020 N.C. App. LEXIS 304 (2020).

V.Wishes of Child

Wishes of Child of Sufficient Age Are Entitled to Weight. —

The wishes of a child of sufficient age to exercise discretion in choosing a custodian are entitled to considerable weight when the contest is between the parents, but are not controlling. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981).

A child may be a competent witness and ought to be examined in that character. Indeed, being the party mainly concerned, he has a right to make a statement to the court as to his feelings and wishes upon the matter. This ought to be allowed serious consideration by the court, in the exercise of its discretion. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

In making the weighty choice of awarding custody, the judge may properly consider the preference or wishes of a child of suitable age and discretion. In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

As to the courts’ consideration of the wishes of a child of suitable age, see also In re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750, 1984 N.C. App. LEXIS 3434 (1984).

Because Child’s Wishes Will Aid Determination of His Best Interests. —

The child’s wishes will be one factor considered by the court in determining his custody, usually not because of any legal right in the child to have his wishes granted, but because the consideration of such wishes will aid the court in making a custodial decree which is for the best interests and welfare of the child. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

But Such Wishes Are Not Controlling. —

When a child has reached the age of discretion, the court may consider the preference or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view on the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be the child’s best interests, regardless of the child’s personal preference. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

Although the preference of a child of discretion would seem to have its greatest weight when the controversy is between the parents and both are fit persons, the child’s wishes are only entitled to consideration and are not controlling. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Weight to Be Given Child’s Testimony Is for the Court. —

A child has a right to have his testimony heard. However, the weight to be attached to such testimony is within the discretion of the trial judge. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

Lack of Findings as to Child’s Preferences Insufficient to Upset Award. —

Failure of the court to include a finding as to the preferences of the minor child is insufficient to upset its order of award of custody. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Ten Year Old. —

A child’s preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a 10-year-old child in making his determination. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child’s welfare. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

VI.Discretion of Trial Court

Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

The question of custody is one addressed to the trial court. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

Trial Judge Is Vested with Broad Discretion. —

The trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving custody of children. Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, 1975 N.C. App. LEXIS 2312 , cert. denied, 287 N.C. 664 , 216 S.E.2d 911, 1975 N.C. LEXIS 1175 (1975); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977); Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871, 1978 N.C. App. LEXIS 2313 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1222 (1979); In re Peal, 305 N.C. 640 , 290 S.E.2d 664, 1982 N.C. LEXIS 1334 (1982).

While the welfare of the child is always to be treated as the paramount consideration, wide discretionary power is necessarily vested in the trial court in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953); Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

The trial court has broad discretion in deciding child custody cases. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

The trial judge is vested with broad discretion in child custody cases. The “paramount consideration” which limits this discretion is the welfare and needs of the children. Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716, 1983 N.C. App. LEXIS 3559 (1983).

The trial judge is vested with broad discretion in child custody cases, and that discretion must be exercised to serve the welfare and needs of the children. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277, 1986 N.C. App. LEXIS 2435 (1986).

Judge’s Decision Will Not Be Upset Absent Abuse. —

The decision to award custody of a minor is vested in the discretion of the trial judge, who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Pitts, 2 N.C. App. 211, 162 S.E.2d 524, 1968 N.C. App. LEXIS 903 (1968); In re Morrison, 6 N.C. App. 47, 169 S.E.2d 228, 1969 N.C. App. LEXIS 1137 (1969); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Jarman v. Jarman, 14 N.C. App. 531, 188 S.E.2d 647, 1972 N.C. App. LEXIS 2167 , cert. denied, 281 N.C. 622 , 190 S.E.2d 465, 1972 N.C. LEXIS 1126 (1972); In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, 1973 N.C. App. LEXIS 1442 , cert. denied, 283 N.C. 585 , 196 S.E.2d 809, 1973 N.C. LEXIS 1011 (1973); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616, 1979 N.C. App. LEXIS 2335 (1979); Wilson v. Williams, 42 N.C. App. 348, 256 S.E.2d 516, 1979 N.C. App. LEXIS 2826 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983); Plemmons v. Stiles, 65 N.C. App. 341, 309 S.E.2d 504, 1983 N.C. App. LEXIS 3470 (1983).

Where trial judge enters a custody order that in his judgment is in the best interest of the child, the appellate division should not reverse that judgment and hold, as a matter of law, that the trial judge was obliged to have reached a different opinion, in the absence of a clear showing of abuse of discretion. Decisions in custody cases are never easy, and the trial judge has the opportunity to see the parties in person and to hear the witnesses. He can detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges. Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849, 1979 N.C. App. LEXIS 2767 (1979).

If Supported by Competent Evidence. —

The trial judge’s decision as to custody will not be upset, in the absence of a clear abuse of discretion, if his findings are supported by competent evidence. Sheppard v. Sheppard, 38 N.C. App. 712, 248 S.E.2d 871, 1978 N.C. App. LEXIS 2313 (1978), cert. denied, 296 N.C. 586 , 254 S.E.2d 34, 1979 N.C. LEXIS 1222 (1979); Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457, 1983 N.C. App. LEXIS 2640 (1983).

The question of custody is one addressed to the trial court, and the court’s decision will be upheld if supported by competent evidence. Roberts v. Short, 6 N.C. App. 419, 169 S.E.2d 910, 1969 N.C. App. LEXIS 1198 (1969); Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

The trial judge is present where he can observe and hear the parties and their witnesses, and ordinarily his decision on custody will be upheld if supported by competent evidence. In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1, 1969 N.C. App. LEXIS 1586 (1969).

Instead of applying an inflexible rule, the court must consider all facts of the case and decide the issue in accordance with the best interests of the child. Paschall v. Paschall, 21 N.C. App. 120, 203 S.E.2d 337, 1974 N.C. App. LEXIS 1734 (1974).

Discretion to Allow Grandparent’s Visitation Rights. —

Although the trial judge determined that the appellant-defendant would continue to have primary custody of the children, it was entirely within the trial judge’s discretion to allow the grandparents’ visitation rights based on the best interest of the children. Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

Nature of Evidence. —

An order for custody should be entered only after the most careful consideration, and only after the court has had the benefit of more reliable evidence than is usually afforded by affidavits. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

Discretion Not to Include A Provision. —

Plaintiff provided no supporting guidance as to how or why the trial court was required to make certain findings and the issue was not addressed; moreover, as the trial court orally noted that it would not entertain a parenting-time right of first refusal as being in the best interests of the minor children, it was within the discretion of the trial court to not include such a provision, either to its granting or denial, in the child custody order. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

No Abuse in Child Custody Decision. —

Trial court did not abuse its discretion in determining that relocation to California with the father was in the child’s best interest, nor did it violate this section in its order after finding that the father had an immediately proximate support system to help him care for the child while the mother’s support system was four hours away from the mother, who lived alone and was in the military since the mother’s military status was not the only basis for the decision. Munoz v. Munoz, 2021-NCCOA-399, 278 N.C. App. 647, 864 S.E.2d 364, 2021- NCCOA-399, 2021 N.C. App. LEXIS 422 (2021).

Trial court did not abuse its discretion in determining that relocation to California with the father was in the child’s best interest, nor did it violate this section in its order after finding that the father had an immediately proximate support system to help him care for the child while the mother’s support system was four hours away from the mother, who lived alone and was in the military since the mother’s military status was not the only basis for the decision. Munoz v. Munoz, 2021-NCCOA-399, 278 N.C. App. 647, 864 S.E.2d 364, 2021- NCCOA-399, 2021 N.C. App. LEXIS 422 (2021).

VII.Findings of Fact

Trial Court Must Make Findings of Fact. —

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981); Story v. Story, 57 N.C. App. 657, 291 S.E.2d 923 (1982).

The court erred in not permitting the parties to a “joint custody” agreement to present extrinsic evidence of the parties’ understanding of the meaning of those terms and their intent at the time of the agreement before determining whether the plaintiff wife had breached the agreement by failing to take steps to help the son who had drug abuse problems, thereby excusing the defendant husband from paying alimony. Patterson v. Taylor, 140 N.C. App. 91, 535 S.E.2d 374, 2000 N.C. App. LEXIS 1035 (2000).

Before awarding custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party will best promote the interest and welfare of the child. Findings of fact as to the characteristics of the competing parties must be made to support the necessary conclusion of law. These findings may concern physical, mental, or financial fitness or any other factors brought out in the evidence and relevant to the issue of the welfare of the child. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466, 1978 N.C. App. LEXIS 2557 (1978).

To support an award of custody, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will best promote the interest and welfare of the child; the conclusion of law determinative of the custody is not, therefore, that the person gaining custody is a fit and proper person to have custody, but which party will best promote the interest and welfare of the child. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Which Must Be More Than Mere Conclusory Statements. —

A custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child, and custody orders are routinely vacated where the findings of fact consist of mere conclusory statements that the party being awarded custody is a fit and proper person to have custody and that it will be in the best interests of the child to award custody to that person. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

And Must Resolve Questions Raised by Evidence. —

Findings bearing on the party’s fitness to have care, custody and control of the child and findings as to the best interests of the child must resolve all questions raised by the evidence pertaining thereto. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

But the trial judge is not required to find all the facts shown by the evidence. It is sufficient if enough material facts are found to support the judgment. In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Findings of Fact Insufficient. —

Without a finding of a substantial change of circumstances, a modification based solely on the ground that the defendant mother was over-protective was improper. Benedict v. Coe, 117 N.C. App. 369, 451 S.E.2d 320, 1994 N.C. App. LEXIS 1269 (1994).

The trial court erred in amending the custody decree based on a finding of substantial change in circumstances where it found only that the proposed relocation of the mother after her remarriage would adversely affect the relationship between the father and his child but made no other findings about the effect of the proposed relocation on the child and on the child’s best interests. Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d 576, 2000 N.C. App. LEXIS 536 (2000).

Trial court erred in entering a custody order which prohibited a father from owning or possessing firearms until the children were emancipated; the trial court failed to make required findings pursuant to G.S. 50-13.2(a) on whether the safety of the children was endangered by the father’s possession of firearms. Martin v. Martin, 167 N.C. App. 365, 605 S.E.2d 203, 2004 N.C. App. LEXIS 2177 (2004).

Findings Supported by the Evidence. —

Trial court did not err in awarding primary physical custody of the children to the husband under G.S. 50-13.2(a); by placing the children in the husband’s physical custody, the children remained in the home and community where they had been raised, the husband demonstrated his ability to care for the children, and some of the husband’s extended family lived nearby and could help with the children. Evans v. Evans, 169 N.C. App. 358, 610 S.E.2d 264, 2005 N.C. App. LEXIS 609 (2005).

Court’s findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982).

Only One Finding. —

While a court had the power under G.S. 7B-903 to enter an order transferring the custody of a minor child from her father to her mother, there was no evidence in the record in a proceeding on the parties’ cross-motions for contempt that supported the finding that transferring custody to the mother was in the child’s best interests. The court made only one finding, that the child missed the two people in her life who had neglected her, which was not a basis for not allowing custody to remain with the father, the trial court had a right under G.S. 50-13.2(a) to consider, but did not consider, acts of domestic violence by the child’s stepfather toward her mother when determining the child’s best interests, and the trial court had no right to take custody away from the father simply because he was unmarried. In re H.S.F., 177 N.C. App. 193, 628 S.E.2d 416, 2006 N.C. App. LEXIS 866 (2006).

Failure to Make Findings Is Error. —

It is error for the court granting a decree of divorce to award the custody of a child without findings of fact from which it could be determined that the order was adequately supported by competent evidence and was for the best interest of the child. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

Trial court erred in granting permanent custody of a child to the child’s natural parent, who had extremely limited contact with the child before the other parent’s death, because it was speculative to assess what the quality of their relationship would be after a four-month “get acquainted” period during which temporary custody had been granted to the child’s grandparents. McRoy v. Hodges, 160 N.C. App. 381, 585 S.E.2d 441, 2003 N.C. App. LEXIS 1790 (2003).

And Will Necessitate Remand. —

When the trial court fails to find facts so that the reviewing court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197, 1976 N.C. App. LEXIS 2472 (1976); In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, 1978 N.C. App. LEXIS 2748 (1978); Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

An order awarding custody of a child to the father, without any findings of fact other than a recital that the court had previously awarded custody to the father in a proceeding under former G.S. 17-39 , was fatally defective, and the case would be remanded for detailed findings of fact. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967).

Court’s Findings Are Conclusive If Supported by Evidence. —

The findings of the trial court in regard to the custody of children are conclusive when supported by competent evidence. Swicegood v. Swicegood, 270 N.C. 278 , 154 S.E.2d 324, 1967 N.C. LEXIS 1340 (1967); In re Moore, 8 N.C. App. 251, 174 S.E.2d 135, 1970 N.C. App. LEXIS 1527 (1970); Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197, 1976 N.C. App. LEXIS 2472 (1976).

Findings of fact by the trial court in a proceeding to determine the custody of a minor child ordinarily are conclusive when based on competent evidence. Griffin v. Griffin, 237 N.C. 404 , 75 S.E.2d 133, 1953 N.C. LEXIS 644 (1953).

In a hearing to determine the right to custody of the children of the marriage, the court’s findings of fact are conclusive if supported by competent evidence. Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871, 1963 N.C. LEXIS 581 (1963).

Findings Are Binding on the Appellate Courts. —

The trial judge’s findings of fact in custody orders are binding on the appellate courts if supported by competent evidence. Blackley v. Blackley, 285 N.C. 358 , 204 S.E.2d 678, 1974 N.C. LEXIS 977 (1974).

Findings Will Not Be Disturbed Thereby. —

The court’s findings of fact as to the care and custody of children will not be disturbed when supported by competent evidence, even though the evidence be conflicting. Crosby v. Crosby, 272 N.C. 235 , 158 S.E.2d 77, 1967 N.C. LEXIS 1006 (1967); In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844, 1971 N.C. App. LEXIS 1674 (1971).

The normal rule in regard to the custody of children is that where there is competent evidence to support a judge’s finding of fact, a judgment supported by such findings will not be disturbed on appeal; however, the facts found must be adequate for the appellate court to determine that the judgment is substantiated by competent evidence. Green v. Green, 54 N.C. App. 571, 284 S.E.2d 171, 1981 N.C. App. LEXIS 2932 (1981).

Even When Evidence Is Conflicting. —

The findings of the trial judge regarding custody and support are conclusive when supported by competent evidence, even when the evidence is conflicting, the standard for disturbing the trial judge’s decision on appeal being a clear showing of abuse of discretion. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Conclusory Statements Held Inadequate. —

For a case setting forth a visitation order and holding that order to be conclusive and not supported by adequate findings of fact, see Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651, 1990 N.C. App. LEXIS 1129 (1990).

But an order may contain extensive findings and still be fatally defective when not supported by the evidence. Dixon v. Dixon, 67 N.C. App. 122, 312 S.E.2d 669 (1984).

Use of Fifth Amendment Privilege. —

Father could not take advantage of the presumption that it is in the best interest of the child to be in the custody of his natural parent by introducing evidence of his fitness and then invoking his Fifth Amendment privilege against self-incrimination when questioned about his illegal drug activity. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433, 1996 N.C. App. LEXIS 481 (1996).

Where the father failed to make a showing of fitness and the court could not determine his fitness because of his assertion of the Fifth Amendment, the court acted properly in dismissing his claim for custody. Qurneh v. Colie, 122 N.C. App. 553, 471 S.E.2d 433, 1996 N.C. App. LEXIS 481 (1996).

Best Interests of the Child. —

G.S. 50-13.2(a) and G.S. 7B-1110 both require a court to make findings of fact as to a child’s best interests. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572, 2009 N.C. App. LEXIS 108 (2009).

No Abuse of Discretion. —

Trial court acted within its discretion in awarding primary legal custody to defendant, as supported by its findings of fact; the findings included, in part, that plaintiff struck defendant in the face while defendant was pregnant, plaintiff hid a recording device in defendant’s bedroom without her knowledge or consent, plaintiff sued both of defendant’s parents, who provided the minor children with childcare, and defendant handled the majority of the minor children’s educational and medical treatment issues. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

VIII.Effect of Verdicts, Separation Agreements and Consent Judgments

Verdict in Divorce Action Is Not Controlling. —

The verdict in a divorce action can be an important factor in the judge’s consideration of an award of custody, but it is not legally controlling. It is merely one of the circumstances for him to consider, along with all other relevant factors. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

Findings and Conclusions Not Required for Child Consent Judgments. —

While G.S. 1A-1 , Rule 52 and this section mandate findings of fact and conclusions when a court adjudicates child custody, child consent judgments need not contain such findings of fact and conclusions of law, and consenting parties waive their right to have the court adjudicate the merits of the case. Buckingham v. Buckingham, 134 N.C. App. 82, 516 S.E.2d 869, 1999 N.C. App. LEXIS 657 (1999).

When a father filed a motion for modification of custody, a trial court did not abuse its discretion in looking back to the facts surrounding the best interests of the child, pursuant to G.S. 50-13.2(a), at the time the memorandum of judgment was entered to make appropriate findings to provide a base line before it could determine if there had been a material change in circumstances, pursuant to G.S. 50-13.7 , because the mother and father had waived findings of fact and conclusions of law at the time the memorandum of judgment by consent was entered. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679, 2011 N.C. App. LEXIS 2242 (2011).

Nor Are Separation Agreements and Consent Judgments Based Thereon. —

Valid separation agreements, including consent judgments based on such agreements with respect to marital rights, 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. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

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. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560, 1976 N.C. App. LEXIS 2383 (1976).

And Court Is Not Precluded Thereby from Acting Under This Section. —

A deed of separation between husband and wife containing an agreement for the custody of their minor child does not preclude the court, upon granting a decree for absolute divorce in a suit brought subsequent to the deed of separation, from awarding the custody of the child in accordance with this section. In re Albertson, 205 N.C. 742 , 172 S.E. 411, 1934 N.C. LEXIS 54 (1934).

The fact that petitioner agreed when separation took place between herself and her husband that the custody of their child should remain with the father was not binding on the court. Finley v. Sapp, 238 N.C. 114 , 76 S.E.2d 350, 1953 N.C. LEXIS 387 (1953).

As no agreement between spouses will deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of infants. The parties may bind themselves by separate agreement or by a consent judgment, but they cannot thus withdraw the children of the marriage from the protective custody of the court. State v. Duncan, 222 N.C. 11 , 21 S.E.2d 822, 1942 N.C. LEXIS 3 (1942); Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963).

Provisions in a deed of separation for support of the minor children of the marriage, entered as a consent judgment by the court, cannot deprive the court of its inherent and statutory authority to protect the interests and provide for the welfare of the infants; therefore, judgment increasing the allowance for the minor children upon findings of a change of circumstances warranting such increase would be affirmed. Bishop v. Bishop, 245 N.C. 573 , 96 S.E.2d 721, 1957 N.C. LEXIS 604 (1957).

The child is not a party to a separation agreement, and the parents cannot contract away the jurisdiction of the court, which is always alert in the discharge of its duty towards its wards, the children of the State whose personal property interests require protection. State v. Duncan, 222 N.C. 11 , 21 S.E.2d 822, 1942 N.C. LEXIS 3 (1942).

It is the court’s duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

But provisions of a valid separation agreement, and a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

A 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, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

And Parties Are Bound Thereby Until Court Orders Otherwise. —

Where judgment by confession purported to grant custody of child to one party, this judgment did not deprive the district court of jurisdiction to determine custody, but the parties, having agreed to it, were bound by its provisions until the court made some order for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Presumption as to Amount Mutually Agreed upon in Separation Agreement. —

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 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. Soper v. Soper, 29 N.C. App. 95, 223 S.E.2d 560, 1976 N.C. App. LEXIS 2383 (1976).

There is a presumption, in the absence of evidence to the contrary, that the amount mutually agreed upon in a separation agreement is just and reasonable. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

Party to Separation Agreement Not Precluded from Bringing Action. —

When a case is properly before it, the court has the duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

Where judgment by confession placed custody issue before the court so that it retained jurisdiction to determine custody, it was error not to abate the subsequent action for custody. Pierce v. Pierce, 58 N.C. App. 815, 295 S.E.2d 247, 1982 N.C. App. LEXIS 2843 (1982).

Effect of Custody Award on Consent Judgment. —

Where a consent judgment in an action for a divorce a mensa operated as a gift to the wife of an estate in the husband’s land, the fact that the court awarded custody of the children did not affect it. Morris v. Patterson, 180 N.C. 484 , 105 S.E. 25, 1920 N.C. LEXIS 118 (1920).

Trial court did not abuse its discretion in awarding joint custody to both parties. Church v. Church, 119 N.C. App. 436, 458 S.E.2d 732, 1995 N.C. App. LEXIS 475 (1995).

Modification of Custody Order. —

Trial court did not err in granting a mother legal and primary physical custody because the court was permitted to make an initial child custody determination since the juvenile court in the neglect proceeding returned custody to the parties; in the absence of an existing permanent child custody order, the trial court was not required to find or conclude that there existed a substantial change of circumstances affecting the welfare of the child for purposes of modifying an existing custody order. McMillan v. McMillan, 267 N.C. App. 537, 833 S.E.2d 692, 2019 N.C. App. LEXIS 801 (2019), cert. denied, 374 N.C. 750 , 842 S.E.2d 597, 2020 N.C. LEXIS 534 (2020).

I.In General

Editor’s Note. —

A number of the cases cited below were decided under former G.S. 50-13 , which dealt with custody and maintenance of children in actions for divorce, and former G.S. 50-16 , which dealt with actions for alimony without divorce.

State Policy. —

It is the policy of this State that both parents have a duty to support their minor children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Public Policy. —

The public policy of this State encourages settlement agreements and supports the inclusion of a provision for the recovery of attorney’s fees in settlement agreements. Bromhal v. Stott, 341 N.C. 702 , 462 S.E.2d 219, 1995 N.C. LEXIS 524 (1995).

History of Section. —

For discussion of the history of this section, see Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

Provisions in Chapter 110 Prevail over This Chapter. —

The legislature did not intend for this chapter to control all actions for child support. Reading this chapter together with Chapter 110, the more specific provisions of Chapter 110 dealing with the procedure for determining and enforcing support obligations of a father who voluntarily acknowledges paternity prevails over any conflicting procedure in this chapter for determining and enforcing custody and support of minor children. Wake County ex rel. Horton v. Ryles, 112 N.C. App. 754, 437 S.E.2d 404, 1993 N.C. App. LEXIS 1238 (1993).

Subsection (a) does not specify that it requires judicial determination of custody before its provision can be utilized by a person or agency bringing an action for support. Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249, 1988 N.C. App. LEXIS 173 (1988).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Support Exemption. —

G.S. 105-149 has been repealed in apparent effort by General Assembly to bring North Carolina’s personal income tax laws into conformity with the 1984 revisions of federal tax statutes. Under federal law, custodial parent, not parent paying primary support, is entitled to claim support exemption for child under circumstances such as are present here. However, federal law also provides that custodial parent may waive right to claim exemption. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Trial court may order custodial parent to waive right to claim federal and State tax exemptions. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Court order assigning federal and State tax dependency exemptions to payor of child support for all income tax purposes was valid. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Mentally Retarded Children. —

North Carolina trial court properly exercised jurisdiction over a father’s action seeking modification of a New Jersey trial court’s order requiring the father to pay child support for a mentally retarded child who was born in 1964, after the child and her mother moved to North Carolina and the father moved to Maryland, and the trial court’s judgment that the father’s request for an order terminating his obligation to pay child support had to be granted, pursuant to G.S. 50-13.4(c), was affirmed on appeal. Lombardi v. Lombardi, 157 N.C. App. 540, 579 S.E.2d 419, 2003 N.C. App. LEXIS 740 (2003).

The Child Support Guidelines should not be used to determine the support obligation of a stepparent, secondarily liable for a child’s needs. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445, 1994 N.C. App. LEXIS 20 (1994).

Support and Counsel Fees Pendente Lite on Husband’s Denial of Paternity. —

Where, upon wife’s motion in the cause to require defendant to provide support for the minor child of the marriage, made after decree of absolute divorce, husband filed an affidavit denying paternity, and at his instance the issue was transferred to the civil issue docket, the trial court had the discretionary power to order defendant to provide for support of the child and counsel fees pendente lite. Winfield v. Winfield, 228 N.C. 256 , 45 S.E.2d 259, 1947 N.C. LEXIS 600 (1947).

The requirement that a voluntary assumption of support be reduced to writing, imposed on those who are secondarily liable under subsection (b) of this section, does not apply to parents of unemancipated minors who have had a child, for they are primarily liable for support of the infant. Whitman v. Kiger, 139 N.C. App. 44, 533 S.E.2d 807, 2000 N.C. App. LEXIS 816 (2000), aff'd, 353 N.C. 360 , 543 S.E.2d 476, 2001 N.C. LEXIS 262 (2001).

Modification Of Foreign Order. —

Pursuant to the Uniform Interstate Family Support Act, Va. Code Ann. § 20-88.66, the trial court did not err in registering a 1997 North Carolina (N.C.) child support order, which applied the duration term set forth in a 1994 New York (N.Y.) child support order because the 1994 N.Y. order was not modified and remained in full force and effect through the 1997 N.C. order’s saving language; the 1997 N.C. order provided that all provisions of previous orders not modified therein would remain in full force and effect. Moncrief v. Div. of Child Support Enforcement ex rel. Joyner, 60 Va. App. 721, 732 S.E.2d 714, 2012 Va. App. LEXIS 320 (2012).

II.Institution of Action

Judicial Determination of Custody. —

Subsection (a) does not specify that it requires judicial determination of custody before its provisions can be utilized by person or agency bringing action for support. Thus, where mother in her proceeding for modification of support order also requested a formal adjudication of custody, which request was granted, plaintiff met the custody requirements of subsection (a). Craig v. Kelley, 89 N.C. App. 458, 366 S.E.2d 249, 1988 N.C. App. LEXIS 173 (1988).

Custodial Parent as Real Party in Interest. —

If the custodial parent provides support which the other parent is legally obligated to provide, then the custodial parent is a real party in interest in an action to recover the support so provided. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Although plaintiff alleged that he was the father of the child, he did not allege that he had custody, therefore under the provisions of this section, only a parent who has custody of a minor child may bring an action for its support. Becton v. George, 90 N.C. App. 607, 369 S.E.2d 366, 1988 N.C. App. LEXIS 567 (1988).

Required Notice Deemed Waived. —

Where both parties introduced evidence on the reasonable needs of the children and the relative ability of each parent to pay support for the children, the defendant’s failure to give proper notice of his request that a hearing be conducted regarding these issues was waived and the trial court was required to find facts and enter conclusions on this evidence. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991); Rose v. Rose, 108 N.C. App. 90, 422 S.E.2d 446, 1992 N.C. App. LEXIS 837 (1992).

Notice for Hearing. —

This section does not identify any time restrictions for making the request for a hearing described in subsection (c). However, to effectuate the purpose of this section, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by G.S. 50-13.5(d)(1). Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

There is no limitation as to time within which actions for the support of legitimate children must be commenced. County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C. App. 182, 264 S.E.2d 816, 1980 N.C. App. LEXIS 2806 (1980).

Motion in Cause. —

Plaintiff-husband, as a parent seeking custody, could seek to have his child support obligation determined through a motion in the cause in the divorce action. He was not precluded from doing so by the fact that the court had not previously entered orders in that action relating to child support. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

Discovery Held Overbroad. —

For a case in which it was held that plaintiff’s discovery request in a child-support case was overbroad and should have been limited by the trial court, see Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

Prayer for Increase in Support Actually Action Under this Section. —

Although plaintiff’s complaint prayed for an increase in child support based upon a substantial change in circumstances, plaintiff’s action was in fact brought pursuant to subsection (a) of this section because the amount sought to be increased was paid pursuant to a non-judicial separation agreement; plaintiff was actually asking the Court to enter an original award of child support. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

III.Liability for Support

Subsection (b) imposes primary liability upon both father and mother to support a minor child. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Subsection (b) of this section, as amended in 1981, does not diminish a father’s responsibilities. Rather, it enlarges a mother’s responsibilities by making both parents primarily liable for the support of their children. Alamance County Hosp. v. Neighbors, 315 N.C. 362 , 338 S.E.2d 87, 1986 N.C. LEXIS 1869 (1986).

Equal Duty of Support Is Rule Rather Than Exception. —

Today, the equal duty of both parents to support their children is the rule rather than the exception is virtually all states. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Both parents have equal support duties under the law, absent pleading and proof that circumstances otherwise warrant. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Support for minor children is an obligation shared by both parents according to their relative abilities to provide support and the reasonable needs and estate of the child. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

But Equal Financial Contributions Are Not Necessarily Required. —

Subsection (b) of this section provides that both mothers and fathers share primary liability for the support of their minor children, thus imposing an equal legal duty on the parent of each gender. However, subsection (b) neither mandates equal financial contributions nor requires any contribution from either party where it is proved that the circumstances otherwise warrant. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Equal legal duty to support does not impose an equal financial contribution by both parties. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Equal duty to support does not necessarily mean that the amount of child support is to be automatically divided equally between the parties. Rather, the amount of each parent’s obligation varies in accordance with their respective financial resources. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Equal Financial Contributions Not Imposed Where Unfair or Burdensome. —

The parental obligation for child support is not primarily an obligation of the father but is one shared by both parents. This equal duty to support, however, does not impose upon both parties an equal financial contribution when such an allocation would be unfair or place too great a burden on a party. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Discretion of Court as to Amount and Source of Support. —

The trial court has considerable discretion in determining whether and in what amounts the party from whom support is sought may be ordered to provide it. Therefore, the trial court has a duty to exercise an informed and considered discretion with respect to the support obligation of the parties. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Amount of Each Party’s Contribution Determined on Case-by-Case Basis. —

The amount of each party’s contribution to child support is generally determined by the judge on a case-by-case basis. The judge must evaluate the circumstances of each family and also consider certain statutory requirements in fixing the amount of child support. Subsection (c) of this section mandates that the trial judge consider the certain factors in setting child support amounts. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Relative Ability to Pay May Be Considered. —

Although Session Laws 1981, c. 613 had the effect of changing the previous rule that the mother was only secondarily liable for child support, in all other relevant respects involving the relative ability or inability of the mother and father to provide such support, the relevant statutory provisions remained unchanged. Therefore, other circumstances may properly be considered, including the relative ability of the parties to pay. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

It was apparent from the record that the trial court considered both the existence and structure of appellee’s trust fund and appellant’s income as an ophthalmologist in making its determination that appellant should contribute one-half of child’s necessary and actual expenses. It concluded that a father in an established ophthalmologic practice, and who had a 1991 income of at least $88,000 was able to contribute half of his child’s support. Munn v. Munn, 112 N.C. App. 151, 435 S.E.2d 74, 1993 N.C. App. LEXIS 1060 (1993).

Consideration of Ability to Pay — Procedure. —

Defendant’s contention that summary judgment was improper because he was financially unable to make the child support payments called for in the agreement would be relevant only to future payments and could be considered only after the defendant had filed a motion in the cause for the trial court to set an amount of child support which differs from that in the separation agreement. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Voluntary Unemployment. —

Trial court order finding that mother was obligated to pay child support to her ex-husband for their three minor children who resided with the ex-husband, which was based on a deviation from the North Carolina Child Support Guidelines, was error; although the deviation was supported by the evidence in that the mother was voluntarily unemployed and had cash reserves to meet her financial obligations of the children, the amount awarded was not supported by any evidence. Roberts v. McAllister, 174 N.C. App. 369, 621 S.E.2d 191, 2005 N.C. App. LEXIS 2490 (2005).

Determination of Relative Ability. —

The relative ability of the parties to contribute under subsections (b) and (c) of this section cannot depend solely on the determination of monthly available income after expenses. Rather, it must be reflective of all the relevant circumstances, including the relative hardship to each parent in contributing to the reasonable needs of the child. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Stepparent in Loco Parentis. —

If an individual assumes the status of in loco parentis, he is secondarily liable to the child’s natural parents for the support of that child, and if the needs of the child exceed the ability of the child’s natural parents to meet those needs, then and only then is the individual in loco parentis secondarily responsible for the deficiency. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445, 1994 N.C. App. LEXIS 20 (1994).

By signing a separation agreement in which he agreed to pay child support to plaintiff, stepparent voluntarily and in writing extended his status of in loco parentis and gave the court the authority to order that support be paid. Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445, 1994 N.C. App. LEXIS 20 (1994).

Child’s Needs and Hardship to Each Parent Must Be Considered. —

Enforcement of each parent’s statutory duty to contribute child support depends on the urgency of the needs of the child and the relative hardship to each parent in contributing to these needs. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Children with Property of Their Own. —

There is nothing in the statute to suggest any legislative intent to change the firmly established rule that the supporting parent who can do so remains obligated to support his or her minor children, even though they may have property of their own. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

Although trial court found as a fact that each child had an estate in excess of $300,000.00, the separate incomes and estates of children did not diminish or relieve the obligation of the defendant father to support his children, even though former husband’s income was about $37,000.00. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

Education Needs of Child. —

Although public funding may have been available for special education needs of child, but was not sought by custodial parent, court did not err in requiring noncustodial parent to pay costs of child’s educational expenses in proportion to parent’s gross income. Sikes v. Sikes, 98 N.C. App. 610, 391 S.E.2d 855, 1990 N.C. App. LEXIS 452 (1990), aff'd, 330 N.C. 595 , 411 S.E.2d 588, 1992 N.C. LEXIS 16 (1992).

Mother had to continue paying child support under subdivision (c)(2) of this section for her son who had turned 18 where, although he would not be able to receive a standard high school diploma because he had Down’s Syndrome, his teacher and school counselor showed that his attendance at the school was in his best interests, that he would continue to benefit in the future from the curriculum, and that he was making satisfactory academic progress toward a non-traditional graduation. Hendricks v. Sanks, 143 N.C. App. 544, 545 S.E.2d 779, 2001 N.C. App. LEXIS 294 (2001).

Apportionment of Costs Is Not Required Where One Parent Is Unable to Assist in Support. —

Although apportionment of the costs of a child’s support between his father and mother according to their respective means and responsibilities is statutorily authorized, it is not required where the mother is financially unable to assist the father with the support of their son. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Support of Child Legitimated Under G.S. 49-12 . —

Where the reputed father of a child marries the child’s mother after its birth, under G.S. 49-12 such child is deemed legitimate just as if it had been born in lawful wedlock, and such child is a minor child of the marriage; thus, the father may be required to furnish support for such child upon motion made either before or after decree of divorce. Carter v. Carter, 232 N.C. 614 , 61 S.E.2d 711, 1950 N.C. LEXIS 594 (1950).

Primary Liability of Father Under Former Provisions. —

For cases as to father’s primary liability and mother’s secondary liability to support their children, prior to the amendment by Session Laws 1981, c. 613, see Bailey v. Bailey, 127 N.C. 474 , 37 S.E. 502, 1900 N.C. LEXIS 111 (1900); Sanders v. Sanders, 167 N.C. 319 , 83 S.E. 490, 1914 N.C. LEXIS 113 (1914); Tidwell v. Booker, 290 N.C. 98 , 225 S.E.2d 816, 1976 N.C. LEXIS 1046 (1976); Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307, 1977 N.C. App. LEXIS 1594 (1977); Coble v. Coble, 44 N.C. App. 327, 261 S.E.2d 34, 1979 N.C. App. LEXIS 3238 (1979), rev'd, 300 N.C. 708 , 268 S.E.2d 185, 1980 N.C. LEXIS 1123 (1980); Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980); In re Register, 303 N.C. 149 , 277 S.E.2d 356, 1981 N.C. LEXIS 1080 (1981).

As to mother’s standing formerly to bring claim for loss of child’s services and medical expenses, based upon her formerly secondary support obligation, prior to the amendment by Session Laws 1981, c. 613, see Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980).

Father’s Reduction in Payments as Evidence He Had Not Met Obligations. —

Where judge found that mother provided no evidence that she was entitled to payment of back child support, the evidence did not support the judge’s finding; there was evidence that father had not met his child support obligations where father testified that in 1985, he reduced the amount of the payments due to a decrease in salary. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580, 1989 N.C. App. LEXIS 539 (1989).

Equitable Estoppel Did Not Bar Claim for Past Support. —

Even assuming that on some set of facts equitable estoppel might properly bar a claim for child support arrears, it was inapplicable where husband, seeking to rely on equitable estoppel, could not show that, in good faith reliance on the conduct of his ex-wife, he had changed his position for the worse; the only change made in his position was the retention to his benefit of money owed for the support of his children. Griffin v. Griffin, 96 N.C. App. 324, 385 S.E.2d 526, 1989 N.C. App. LEXIS 996 (1989).

Applicability of Doctrine of “Necessaries”. —

Although the normal vehicle today for enforcing the obligation of support is undoubtedly the payment of court-ordered support pursuant to statute, the common law provided another vehicle through the so-called doctrine of “necessaries.” North Carolina accepts this process for enforcing a parent’s obligation to support minor children. Alamance County Hosp. v. Neighbors, 315 N.C. 362 , 338 S.E.2d 87, 1986 N.C. LEXIS 1869 (1986).

Support Obligation of Noncustodial Parent. —

Under new child Support Guidelines an adjustment in support obligation of noncustodial parent is reduced only when each parent has child for more than 33 percent of year. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Right of Third Party to Recover for “Necessaries” Furnished to Child. —

Because a child’s right to support continues unimpaired despite the divorce of his or her parents, the right of a third party provider of goods or services to claim against the noncustodial parent also continues, unimpaired by contracts or judicial decrees or orders affecting the relations between the parents. Alamance County Hosp. v. Neighbors, 315 N.C. 362 , 338 S.E.2d 87, 1986 N.C. LEXIS 1869 (1986).

The payment of court-ordered child support does not bar a third party from seeking reimbursement directly from a noncustodial parent for “necessaries” provided to that parent’s minor child. However, because the third party provider’s right to recover against the parent is based upon the child’s right to support, the third party provider must still show that the services or goods provided were legal “necessaries” and that the parent against whom relief is sought has failed or refused to provide them. In this context, any payment a noncustodial parent has made for the support of his or her child would be a factor for the trial judge to consider in deciding whether the parent has in fact met the obligation to support that child. Alamance County Hosp. v. Neighbors, 315 N.C. 362 , 338 S.E.2d 87, 1986 N.C. LEXIS 1869 (1986).

Non-Biological Parents. —

The court will not impose the burden of child support on a non-biological parent who has not voluntarily assumed such an obligation. Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822, 1997 N.C. App. LEXIS 348 (1997).

Persons Standing in Loco Parentis. —

Although support of a child ordinarily is a parental obligation, other persons standing in loco parentis may also acquire a duty to support the child; thus, in a case where custodial father and child had believed him to be the father of the child, the duty of support should have accompanied the right to custody. Price v. Howard, 346 N.C. 68 , 484 S.E.2d 528, 1997 N.C. LEXIS 207 (1997).

Parents of Unemancipated Minors Primarily Responsible for Grandchildren’s Support. —

The statutory language of this section, coupled with the legislative intent, imposes primary responsibility for an infant born to unemancipated minors on the minors’ parents (i.e. the infant’s grandparents). Whitman v. Kiger, 139 N.C. App. 44, 533 S.E.2d 807, 2000 N.C. App. LEXIS 816 (2000), aff'd, 353 N.C. 360 , 543 S.E.2d 476, 2001 N.C. LEXIS 262 (2001).

IV.Amount of Support

A.In General

History and Purpose of Guidelines. —

As of July 1, 1991, the State adopted guidelines based on income-sharing approach for determining child support. These guidelines were promulgated by Conference of Chief District Judges in accordance with subsection (c1) of this section. Income-sharing formulas ignore problem of attempting to determine cost of raising a child and are based instead on assumption that each parent will contribute all of his or her income to one fund. Then the formulas provide method for equitably dividing income among family members. Income-sharing formulas seeking to equalize financial burden of divorce so that all family members experience about same proportional reduction in standard of living after divorce. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Constitutionality of Guidelines. —

Child Support Guidelines (2002) did not violate substantive due process; the State had a compelling interest in regulating child support obligations, and through establishing a rebuttable presumption with regard to the guidelines under G.S. 50-13.4(c), the act was narrowly drawn. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1, 2007 N.C. App. LEXIS 1803 (2007), cert. denied, 555 U.S. 824, 129 S. Ct. 144, 172 L. Ed. 2d 39, 2008 U.S. LEXIS 6580 (2008).

Effective Date of Guidelines. —

At time support order was entered in June, 1989, the Guidelines in subsection (c1) of this section were only advisory in nature. The Guidelines became presumptive as of October 1, 1989. New presumptive guidelines became effective July 1, 1990. Therefore, at the time, (June 1989) order was entered, trial judge was neither required to follow nor refer to advisory guidelines in order. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Use of Guidelines to Determine Support Proper. —

Where parents’ combined gross income was $11,980, below the $20,000 per month threshold, the trial court was permitted to use the child support guidelines and require the husband to continue paying $1,521 per month in child support. Francis v. Francis, 169 N.C. App. 442, 612 S.E.2d 141, 2005 N.C. App. LEXIS 647 (2005).

The amount of a parent’s child support obligation is determined by application of the Child Support Guidelines. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774, 1997 N.C. App. LEXIS 769 (1997), aff'd, 347 N.C. 570 , 494 S.E.2d 763, 1998 N.C. LEXIS 16 (1998).

Guidelines Are Not Mandatory But Advisory. —

An examination and interpretation of subsection (c1) as written clearly indicates that the guidelines prescribed by the Conference of Chief District Court Judges are not mandatory and binding but rather advisory in nature. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441, 1988 N.C. App. LEXIS 1050 (1988) (decided prior to later amendments to subsection (c1)) .

Deviation From Guidelines. —

According to the statute, the trial court has the discretion to deviate from the presumptive guidelines in only two situations: (1) when application does not meet or exceeds the reasonable needs of the child; or (2) when application would be unjust or inappropriate. Guilford County ex rel. Child Support Enforcement Agency ex rel. Easter v. Easter, 120 N.C. App. 260, 461 S.E.2d 798, 1995 N.C. App. LEXIS 739 (1995), aff'd in part and rev'd in part, 344 N.C. 166 , 473 S.E.2d 6, 1996 N.C. LEXIS 413 (1996).

A trial court may deviate from the Guidelines when it finds, by the greater weight of the evidence, application of the Guidelines: (1) would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support; or (2) would be otherwise unjust or inappropriate. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774, 1997 N.C. App. LEXIS 769 (1997), aff'd, 347 N.C. 570 , 494 S.E.2d 763, 1998 N.C. LEXIS 16 (1998).

Although the trial court properly considered the father’s settlement trust to be non-recurring income when making its child support order, the case was remanded because the trial court failed to make specific findings regarding the reasonable needs of the child when it deviated from the North Carolina Child Support Guidelines. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678, 2005 N.C. App. LEXIS 260 (2005).

North Carolina Child Support Guidelines were inapplicable because the combined monthly adjusted gross income of the parents exceeded $20,000; thus, the trial court was required to make a case-by-case determination. Consequently, the trial court was not bound by the Guidelines in determining the father’s child support obligations. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25, 2006 N.C. App. LEXIS 1180 (2006).

In considering a father’s motion to modify child support, the trial court did not err in deviating only slightly from the guidelines; the guidelines were constitutional, and the slight deviation was not manifestly unsupported by reason. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1, 2007 N.C. App. LEXIS 1803 (2007), cert. denied, 555 U.S. 824, 129 S. Ct. 144, 172 L. Ed. 2d 39, 2008 U.S. LEXIS 6580 (2008).

Trial court did not abuse its discretion in declining to deviate from the North Carolina Child Support Guidelines because it made findings regarding both the needs of the child and each parent’s relative ability to provide support and did not find application of the Guidelines would be unjust or inappropriate. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

Trial Court’s Methodology Proper. —

Even if the father had assigned error to the methodology employed by the trial court, there was no error in the trial court’s determination process under circumstances in which both parties maintained full-time employment and earned average monthly incomes in excess of $10,000; the trial court’s findings of fact included an updated analysis of the child’s total reasonable needs while in the mother’s care, the mother’s pro rata share of the parties’ gross income, and the mother’s pro rata share of the child’s reasonable needs while in her custody. Pascoe v. Pascoe, 183 N.C. App. 648, 645 S.E.2d 156, 2007 N.C. App. LEXIS 1124 (2007).

Trial court did not abuse its discretion by determining that it would not base the child support calculation on the estates of the parties because they were essentially equal, and neither party would be required to deplete his or her accounts and properties to support the child. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

The child support guidelines were held inapplicable and child support was determined by assessing the particular facts of the case where a father’s monthly income was $15,181; the denial of a father’s motion to reduce child support was affirmed where the trial court acknowledged the father’s income decrease, considered the father’s family related expenses and support obligations, and determined, based on the father’s net income of over $5,000 per month, that a reduction in child support from the original amount of $2,500 was unwarranted. Trevillian v. Trevillian, 164 N.C. App. 223, 595 S.E.2d 206, 2004 N.C. App. LEXIS 661 (2004).

Deviation from Guidelines Improper. —

Trial court’s findings that mother’s live-in boyfriend earned $16.61 per hour and worked forty hours a week was insufficient to support the decision to deviate from the Child Support Guidelines. State ex rel. Carteret Child Support Enforcement Office ex rel. Horne v. Horne, 127 N.C. App. 387, 489 S.E.2d 431, 1997 N.C. App. LEXIS 879 (1997).

Automatic Support Increases. —

Provision in judgment by confession ordering automatic child support increases based upon the C.P.I. was void where it did not contain the requirements for a valid annual adjustment formula in Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, cert. denied, 304 N.C. 390 , 285 S.E.2d 831 (1981). Snipes v. Snipes, 118 N.C. App. 189, 454 S.E.2d 864, 1995 N.C. App. LEXIS 158 (1995).

The determination of child support must be done in such way as to result in fairness to all parties. Walker v. Walker, 38 N.C. App. 226, 247 S.E.2d 615, 1978 N.C. App. LEXIS 2134 (1978); Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Ultimate Objective. —

While it is the legal obligation of the father (now father and mother) to provide for the support of his minor children, and while the welfare of the child is a primary consideration in matters of custody and maintenance, yet common sense and common justice dictate that the ultimate object in such matters is to secure support commensurate with the needs of the child and the ability of the father to meet the needs. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542, 1976 N.C. App. LEXIS 2390 (1976).

No precise formula exists to assist the court in determining a fair support award, and the uniqueness of each divorce renders a precedent almost valueless. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Request for Variance from Child Support Guidelines. —

G.S. 50-13.4 does not identify any time restrictions for making the request for a hearing. However, to effectuate the purpose of that statute, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

In deviating from child support guidelines, the trial court was required to make findings of fact as to the criteria that justified varying from the guidelines and the basis of the amount ordered; the court committed error because its findings were insufficient to meet this requirement. Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911, 1993 N.C. App. LEXIS 861 (1993).

Failure to follow the presumptive child-support guidelines prescribed pursuant to subsection (c1) required that a support order be reversed; the guidelines were not mentioned in the order and the order did not make reference to any of the factors used to vary a support payment from the presumptive amounts. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399, 1991 N.C. App. LEXIS 30 (1991).

In child support action, trial court must first determine primary liability for minor child’s support under subsection (b). The court then determines the actual amount of support necessary to meet the minor child’s reasonable needs pursuant to subsection (c). McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495, 1988 N.C. App. LEXIS 176 (1988).

Deviation from Guidelines in Special Needs Case. —

The trial court erred in simply halving the mother’s child support obligation when she was no longer liable for the support of one of the two children; the court was required to hold a hearing and make findings of fact when it deviated from the Child Support Guidelines, and, considering the second child’s special needs, an amount higher than one-half of the original total might have been more appropriate. Hendricks v. Sanks, 143 N.C. App. 544, 545 S.E.2d 779, 2001 N.C. App. LEXIS 294 (2001).

Where 11 U.S.C.S. § 1325(b)(2) required that child support payments be reasonably necessary to be expended for a child and where G.S. 50-13.4(c) also provided that child support payments must be in such an amount as to meet the reasonable needs of a child, the court assumed that the child support payments made to a Chapter 13 debtor were determined in accordance with state law and that the full amount of the payment was reasonably necessary for the support of the children where there had been no contention to the contrary. In re Parker, 2009 Bankr. LEXIS 4278 (Bankr. M.D.N.C. Apr. 28, 2009).

Estimate of Child Support in Error. —

In setting the child support amount, the trial court erred in estimating the children’s reasonable needs by comparing them to the reasonable needs of the father where the estimate was based on speculation, and was especially inappropriate given the finding that the children lived primarily with the mother. Lasecki v. Lasecki, 246 N.C. App. 518, 786 S.E.2d 286, 2016 N.C. App. LEXIS 354 (2016).

Ability to Pay and Needs of Child Must Be Considered. —

Ordinarily, in entering a judgment for the support of a minor child, the ability to pay, as well as the needs of such child, will be taken into consideration. Bishop v. Bishop, 245 N.C. 573 , 96 S.E.2d 721, 1957 N.C. LEXIS 604 (1957); Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Coggins v. Coggins, 260 N.C. 765 , 133 S.E.2d 700, 1963 N.C. LEXIS 814 (1963).

In providing for the support of minor children, the ability of the father (or mother) to pay, as well as the needs of the children, must be taken into consideration by the court. Martin v. Martin, 263 N.C. 86 , 138 S.E.2d 801, 1964 N.C. LEXIS 764 (1964).

In determining the amount of support, the court must take into consideration the needs of the children and the ability of the defendant to pay during the time for which reimbursement is sought. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307, 1977 N.C. App. LEXIS 1594 (1977).

An order for child support must be based not only on the needs of the child, but also on the ability of the father (or mother) to meet the needs. Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240, 1979 N.C. App. LEXIS 2589 (1979).

In order to be fair and just, the court entering an order for child support must consider not only the needs of the child, but also the abilities of the parents to provide support. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

An order for child support must be based upon the interplay of the trial court’s conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child and (2) the relative ability of the parties to provide that amount. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

Computing the amount of child support is normally an exercise of sound judicial discretion, requiring the judge to review all of the evidence before him. Absent a clear abuse of discretion, a judge’s determination of what is a proper amount of support will not be disturbed on appeal. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

The trial court’s findings lacked the necessary specificity to justify its deviation from child support guidelines, where it failed to make any findings regarding the child’s reasonable needs, including his education, maintenance, or accustomed standard of living. State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591, 1998 N.C. App. LEXIS 1444 (1998).

Trial court had subject matter jurisdiction under G.S. 7B-200(a) over neglect proceedings, and as G.S. 7B-903 authorized the placement of the neglected child with the child’s mother, the trial court had authority under G.S. 7B-904 to order a father to pay child support to the child’s mother; however, further findings were required under G.S. 7B-904 (d) and G.S. 50-13.4(c) as to the reasonable needs of the child and the relative ability of the father to provide that amount. In re W.V., 204 N.C. App. 290, 693 S.E.2d 383, 2010 N.C. App. LEXIS 949 (2010).

Trial court did not err in referencing a father’s income when dismissing the father’s complaint for child support because that information was relevant to the father’s claim for child support. Durham Cty. v. Adams, 258 N.C. App. 395, 812 S.E.2d 885, 2018 N.C. App. LEXIS 276 (2018).

When Ability to Pay Determined. —

A party’s ability to pay child support is determined by the party’s ability to pay at the time the award is made or modified. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217, 1995 N.C. App. LEXIS 418 (1995).

As Basis of Order for Child Support. —

An order for child support under this section must be based upon the interplay of the trial court’s conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child, and (2) the relative ability of the parties to provide that amount. Coble v. Coble, 300 N.C. 708 , 268 S.E.2d 185, 1980 N.C. LEXIS 1123 (1980); In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236, 1981 N.C. App. LEXIS 2124 (1981); Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982); In re Allen, 58 N.C. App. 322, 293 S.E.2d 607, 1982 N.C. App. LEXIS 2763 (1982); Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205, 1983 N.C. App. LEXIS 2949 (1983); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, 1983 N.C. App. LEXIS 3024 (1983); Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, 1983 N.C. App. LEXIS 3227 (1983).

Along with Other Relevant Facts. —

A court, when entering an order for support, should take into account the needs of the child, the resources of the parties and any other facts relevant to the case. McCall v. McCall, 61 N.C. App. 312, 300 S.E.2d 591, 1983 N.C. App. LEXIS 2635 (1983).

Using disposable income (net income after expenses) is a way to fairly reflect the parties relative ability to contribute proportionately to support of the child. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900, 1991 N.C. App. LEXIS 464 (1991).

With Reference to the Special Circumstances of the Parties. —

What amount is reasonable for a child’s support is to be determined with reference to the special circumstances of the particular parties. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

Judge’s consideration of the factors contained in subsection (c) of this section is not guided by any magic formula. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Vacation of Support Order Absent Evidence as to Parent’s Ability to Pay and Child’s Needs. —

An order for child support will necessarily be vacated where there is no evidence offered as to a party’s ability to pay or where there is no evidence as to the child’s needs and expenses. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

Parent’s Circumstances Must Be Evaluated. —

The amount of each parent’s contribution to the support of the child is based upon the trial court’s evaluation of each parent’s circumstances, including a determination of certain factors mandated by subsection (c) of this section. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

Alimony and Child Support Considered Together. —

Trial court reasonably could have concluded that the wife’s alimony award needed to be increased because the wife’s reasonable expenses had increased after the husband was no longer obligated to pay child support because the parties, minor child had turned 18-years-old. The original alimony award calculated the wife’s reasonable expenses by attributing some of those expenses to the minor child, but the wife’s reasonable expenses increased when the minor child attained the age of majority and those expenses were no longer attributed to the minor child. Harris v. Harris, 188 N.C. App. 477, 656 S.E.2d 316, 2008 N.C. App. LEXIS 228 (2008).

“Cost Sharing” Formula Improper. —

Use of any cost-sharing formula by a trial judge is now improper in North Carolina. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

“Cost-sharing” approach to child support awards embodied in the Franks formula criticized by North Carolina Court of Appeals when applied to case arising before July 1, 1990, effective date of this section. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Under this section and G.S. 50-13.7 , party’s ability to pay child support is ordinarily determined by party’s actual income at time the support award is made or modified. However, if there is a finding by the trial court that the party was acting in bad faith by deliberately depressing his or her income or otherwise disregarding the obligation to pay child support, then the party’s capacity to earn may be the basis for the award. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11, 1988 N.C. App. LEXIS 441 (1988).

Interest in Corporations or Partnerships and Nontaxable Income Relevant. —

The value and nature of defendant’s interest in any partnerships or corporations and the terms of any trust of which he might be the beneficiary, as well as the amount of income, including non-taxable, deferred or declined income, flowing therefrom, would all bear relevance to child support proceeding. Shaw v. Cameron, 125 N.C. App. 522, 481 S.E.2d 365, 1997 N.C. App. LEXIS 111 (1997).

Encumbered Cash Reserve Funds of Corporation. —

The trial court’s exclusion of plaintiff’s corporation’s encumbered cash reserve funds in its calculation of child support was prejudicial error. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774, 1997 N.C. App. LEXIS 769 (1997), aff'd, 347 N.C. 570 , 494 S.E.2d 763, 1998 N.C. LEXIS 16 (1998).

Exclusive Ownership or Control of Estate Irrelevant. —

Any judgment rendered against defendant setting an amount of child support would be dependent in significant part upon the amount of his income and the nature of his estate, whether exclusively owned or controlled by defendant, or jointly with others. Shaw v. Cameron, 125 N.C. App. 522, 481 S.E.2d 365, 1997 N.C. App. LEXIS 111 (1997).

Estate and Earnings of Both Husband and Wife Must Be Considered. —

The court must consider not only the needs of the wife and children, but also the estate and earnings of both husband and wife. Roberts v. Roberts, 38 N.C. App. 295, 248 S.E.2d 85, 1978 N.C. App. LEXIS 2170 (1978); Walker v. Tucker, 69 N.C. App. 607, 317 S.E.2d 923, 1984 N.C. App. LEXIS 3547 (1984).

Order which contained no findings of fact regarding plaintiff’s earnings or employment status was not supported by sufficient findings of fact. Smith v. Smith, 103 N.C. App. 488, 405 S.E.2d 912, 1991 N.C. App. LEXIS 813 (1991).

Ordinarily, Present Earnings Should Be Basis for Award. —

In determining the ability of the father (or mother) to support the child, the court ordinarily should examine the father’s (or mother’s) present earnings, rather than select the earnings for a single year in the past and use that as the basis for an award. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542, 1976 N.C. App. LEXIS 2390 (1976).

If father (or mother) is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award for child support should be based on the amount which defendant is earning when the award is made. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542, 1976 N.C. App. LEXIS 2390 (1976).

Ordinarily, father’s (or mother’s) ability to pay is determined by his income at the time the award is made if father (or mother) is honestly engaged in a business to which he is properly adapted and is in fact seeking to operate his business profitably. Beall v. Beall, 290 N.C. 669 , 228 S.E.2d 407, 1976 N.C. LEXIS 1174 (1976); Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23, 1980 N.C. App. LEXIS 2938 (1980).

The general rule is that the ability of a party to pay child support is determined by that person’s income at the time the award is made. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

The ability of the supporting spouse to pay is ordinarily determined by his or her income at the time the award is made. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

But capacity to earn may be the basis of an award if it is based upon a proper finding that father (or mother) is deliberately depressing his income or indulging himself in excessive spending because of a disregard of his obligation to provide reasonable support for his spouse and children. Beall v. Beall, 290 N.C. 669 , 228 S.E.2d 407, 1976 N.C. LEXIS 1174 (1976).

A person’s capacity to earn income may be made the basis of an award if there is a finding that the party deliberately depressed his or her income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399, 1991 N.C. App. LEXIS 30 (1991).

Under this section and G.S. 50-13.7 , father’s (or mother’s) ability to pay child support is normally determined by his actual income at the time the award is made or modified. If, however, there is a finding that father (or mother) is deliberately depressing his income or otherwise acting in deliberate disregard of his obligation to provide reasonable support for his child, his capacity to earn may be made the basis of the award. Under these circumstances, his motion to reduce the amount of child support will be denied. Goodhouse v. DeFravio, 57 N.C. App. 124, 290 S.E.2d 751, 1982 N.C. App. LEXIS 2598 (1982).

When the trial court makes a finding that a party deliberately depressed his or her income, then the party’s capacity to earn or his potential income may be used to determine the child support obligation. McDonald v. Taylor, 106 N.C. App. 18, 415 S.E.2d 81, 1992 N.C. App. LEXIS 354 (1992).

Where plaintiff took early retirement at age 51, with a 3 year old daughter to support, chose to remain unemployed, despite having many skills, and there was testimony that plaintiff could earn at least $20,000 without decreasing his retirement benefits, the trial court properly based child support award on plaintiff’s potential income. Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113, 1998 N.C. App. LEXIS 351 (1998).

Trial court erred in modifying a father’s child support obligation downward under G.S. 50-13.7(a) despite evidence that he voluntarily quit his $172,000 job as an engineer to follow Jesus Christ and become a minister of a fledgling church without giving consideration to how he would meet his child support obligation. Andrews v. Andrews, 217 N.C. App. 154, 719 S.E.2d 128, 2011 N.C. App. LEXIS 2342 (2011).

Finding Where Award Is Based on Capacity to Earn. —

To base an award for child support on capacity to earn rather than actual earnings, there should be a finding based on evidence that father (or mother) is failing to exercise his capacity to earn because of a disregard of his obligation to provide reasonable support for his spouse and children. Holt v. Holt, 29 N.C. App. 124, 223 S.E.2d 542, 1976 N.C. App. LEXIS 2390 (1976); Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, 1981 N.C. App. LEXIS 2212 , cert. denied, 303 N.C. 182 , 280 S.E.2d 454, 1981 N.C. LEXIS 1280 (1981), cert. denied, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374, 1981 U.S. LEXIS 4181 (1981).

Only where there are findings, based on competent evidence, to support a conclusion that the supporting spouse or parent is deliberately depressing his or her income to avoid family responsibilities can the “earning capacity” rule be applied. Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23, 1980 N.C. App. LEXIS 2938 (1980); Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

A party’s capacity to earn income may become the basis of an award if it is found that the party deliberately depressed its income or otherwise acted in deliberate disregard of the obligation to provide reasonable support for the child. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217, 1995 N.C. App. LEXIS 418 (1995).

When calculating the child support obligation owed by a parent, a showing of bad faith income depression by the parent is a mandatory prerequisite for imputing income to that parent. Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288, 1997 N.C. App. LEXIS 1185 (1997).

Must Be Sufficient Evidence of Proscribed Intent. —

A trial court’s conclusion underlying imposition of the earnings capacity rule must be based upon evidence that the actions which reduced the party’s income were not taken in good faith. There must be sufficient evidence of the proscribed intent. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11, 1988 N.C. App. LEXIS 441 (1988).

Consideration of Spouse’s Capacity to Earn Held Error. —

Trial court could not consider father’s capacity to earn in computing his income where the evidence indicated that he lost his job due to no fault of his own, and the court’s order contained no findings that he had deliberately stopped working to avoid his support obligations. Greer v. Greer, 101 N.C. App. 351, 399 S.E.2d 399, 1991 N.C. App. LEXIS 30 (1991).

Support Should Not Have Been Based on Earning Capacity. —

Where there was no evidence that defendant was engaging in any tactics to avoid paying child support, defendant had purchased a substantial amount of farm equipment for use in his farming operation, and he had experienced a net loss from farming for the last three years but had made a profit from this business in the past, the evidence pointed to a genuine effort by defendant to engage in his chosen profession and to support his family as well; therefore, the case was remanded so the court could make a determination based upon defendant’s present earnings instead of his earning capacity. Cameron v. Cameron, 94 N.C. App. 168, 380 S.E.2d 121, 1989 N.C. App. LEXIS 453 (1989).

Wrongful Inclusion of Future Personal Expenditures. —

Where trial court includes personal expenditures not yet made by party with no concrete plans to make such an expenditure, award entered cannot possibly reflect the relative abilities of parties to pay support at that time. Witherow v. Witherow, 99 N.C. App. 61, 392 S.E.2d 627, 1990 N.C. App. LEXIS 485 (1990), aff'd, 328 N.C. 324 , 401 S.E.2d 362, 1991 N.C. LEXIS 178 (1991).

Determination of trial court not necessary to make finding of bad faith in reduction of income where the party seeking support modification was the custodial parent was not supported by current case law, nor was the trial court correct in concluding that when a custodial parent sought a change of child support based upon a reduction in income, that custodial parent had to request the court to make a finding of fact as to his or her “good faith.” Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11, 1988 N.C. App. LEXIS 441 (1988).

Father’s cost-free housing was properly considered to be a form of gross-income, and thus, recurring income for purposes of making a child support award. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678, 2005 N.C. App. LEXIS 260 (2005).

The inclusion of a gift when calculating a defendant’s income for child support purposes was an error, where there was no evidence on the part of defendant’s parents that such a gift would be reoccurring. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816, 1987 N.C. App. LEXIS 3198 (1987).

But Gift Rent and Vehicle Payments by Mother’s Father Should Have Been Included in Support Obligation. —

Trial court erred in failing to include the mother’s gift income as attributable income in calculating a father’s child support obligation; the payment of the mother’s vehicle and rent payments by her father totaled $1,890, which should have been included in calculating income in the child support order. State v. Williams, 179 N.C. App. 838, 635 S.E.2d 495, 2006 N.C. App. LEXIS 2142 (2006).

Non-interest Bearing Demand Note Not by Itself a Gift. —

The fact that no demand had been made on a non-interest bearing demand note from defendant’s parents did not render it a gift, and the trial court’s finding that the transaction was a gift was erroneous. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816, 1987 N.C. App. LEXIS 3198 (1987).

Third-party contributions may be used to support a deviation from North Carolina Child Support Guidelines, even where third parties are under no legal obligation to make such payments. Guilford County ex rel. Child Support Enforcement Agency ex rel. Easter v. Easter, 344 N.C. 166 , 473 S.E.2d 6, 1996 N.C. LEXIS 413 (1996).

Personal injury settlement, paid on a one-time, non-recurring basis met the definition of “non-recurring income” and thus, was properly considered by the trial court when making a child support award. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678, 2005 N.C. App. LEXIS 260 (2005).

Settlement Payouts Non-Recurring Income. —

Trial court did not abuse its discretion in ordering a father to make a lump sum child support payment under the North Carolina Child Support Guidelines because settlement payouts to the father constituted non-recurring income subject to application of the Guidelines. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

Earnings of Child. —

In a case involving child support payments, the trial court erred in refusing to admit the children’s tax returns into evidence, the only information concerning the estate and earnings of the children. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816, 1987 N.C. App. LEXIS 3198 (1987).

Education and Insurance Expenses. —

Defendant’s argument that provisions to pay for higher education and to provide life and health insurance were not in the nature of child support was not without merit. Smith v. Smith, 121 N.C. App. 334, 465 S.E.2d 52, 1996 N.C. App. LEXIS 14 (1996).

Trial court’s order requiring a father to obtain health insurance for his child did not violate G.S. 50-13.4(c1), even though the father did not have access to employer-provided health insurance, because the father did not claim he lacked access to “other group health insurance” and if a parent had access to “other group health insurance,” such insurance was considered “reasonably-priced” as a matter of law. Reams v. Riggan, 224 N.C. App. 78, 735 S.E.2d 407, 2012 N.C. App. LEXIS 1375 (2012).

Extraordinary Expenses. —

Trial court did not abuse its discretion in entering a child support order that required a father to pay a certain percentage of the minor child’s tuition, daycare expenses, and costs for summer camp because Child Support Guidelines, N.C. Ann. R. specifically allowed for extraordinary expenses for private school tuition and camp fees and the trial court was entitled to consider expenses for child care in its support determination pursuant to G.S. 50-13.4(c); the trial court ordered each party to pay a percentage of the expenses based on the party’s share of the combined gross incomes pursuant to the Guidelines. Balawejder v. Balawejder, 216 N.C. App. 301, 721 S.E.2d 679, 2011 N.C. App. LEXIS 2242 (2011).

Disability Checks Received on Behalf of Child. —

Trial court properly refused to consider a disability check received by disabled defendant on child’s behalf as defendant’s income in figuring his obligation, but erred in allowing defendant to receive the money for his own use. Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921, 1999 N.C. App. LEXIS 808 (1999).

Adoption Assistance Payments. —

Adoption assistance payments received by the parties were resources for the parties’ adopted children, and thus could not be set off against the father’s child support obligation. Gaston County v. Miller, 168 N.C. App. 577, 608 S.E.2d 101, 2005 N.C. App. LEXIS 332 (2005).

Medical insurance premiums paid by a parent on behalf of a child are actual expenditures which must be considered in computing retroactive child support. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176, 1992 N.C. App. LEXIS 661 (1992).

Failure of the trial court to treat a portion of mother’s premiums as an actual expenditure for the purposes of calculating retroactive support was not error, because there was no evidence in the record to support a finding on the portion of the premiums for the joint policy attributable only to coverage of the child. In the absence of such evidence, the trial court would only be speculating as to the child’s share of the cost, and this it could not do. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176, 1992 N.C. App. LEXIS 661 (1992).

Consideration of Health Insurance Coverage Erroneous. —

According to former subdivision (c1)(6) of this section, the trial court was not allowed to vary the presumptive amount of child support based upon the “provision of health insurance coverage;” therefore, by varying the presumptive guideline amount because of the defendant’s maintenance of health insurance on the plaintiff and the children, the trial court acted in violation of this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

Reconsideration of Alimony or Child Support After Equitable Distribution. —

G.S. 50-20 (f) obviously contemplates that child support order may precede equitable distribution order. No child support order is ever final and delaying child support order in lengthy case until after equitable distribution issue was decided would have prolonged an already long-pending case. Trial court’s decision to enter child support order prior to determination of equitable distribution issue was under the statute. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Effective Date of Permanent Award. —

Plaintiff contended the trial court erred in its award of child support because the permanent award should have been made effective from January 2011, rather than from January 2013, but it was well-established that a trial court had not abused its discretion where, based on the evidence before it, the trial court chose not to modify the effective date of a permanent award. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

Amount of Award Is Within Trial Court’s Discretion. —

Once an award is found to be justified, the amount lies within the trial court’s discretion and will not be disturbed absent manifest abuse. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

Amount Should Be Fair and Not Confiscatory. —

An order for the maintenance of a child should be in an amount that is fair and not confiscatory in light of the parent’s earning ability. Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985). See also, Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963).

Allowance Should Be Made for Parent’s Living Expenses. —

In determining the amount of an order for the support of children, a reasonable allowance should be made for the living expenses of their father (or mother) in the light of his earnings. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963).

Dividing Parent’s Income by Number of Dependents Is Disapproved. —

Fixing the amount of support for minor children by dividing the income of their father (or mother) by the number of people dependent upon him for support is not approved. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963).

Conduct of Parties May Be Considered. —

In addition to the factors enumerated in subsection (c) of this section, the trial court may consider the conduct of the parties, the equities of the given case, and any other relevant facts in determining child support. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

This section clearly allows the trial court to consider other facts of the particular case in arriving at the amount of defendant’s share of support in an action for reimbursement. Thus, while the defendant’s ability to pay and his earning capacity are factors to be considered, they are not controlling. The court may also consider the conduct of the parties and the equities of the case. Stanley v. Stanley, 51 N.C. App. 172, 275 S.E.2d 546, 1981 N.C. App. LEXIS 2212 , cert. denied, 303 N.C. 182 , 280 S.E.2d 454, 1981 N.C. LEXIS 1280 (1981), cert. denied, 454 U.S. 959, 102 S. Ct. 496, 70 L. Ed. 2d 374, 1981 U.S. LEXIS 4181 (1981).

Improper Use of Earning Capacity Rule. —

Trial court erred in modifying a father’s child support obligation pursuant to G.S. 50-13.4 ; the trial court found that while the father reduced his income, he did not act in bad faith, and a finding of bad faith was required to apply the earning capacity rule under N.C. Child Support Guidelines, 2003 Ann. R. N.C. 33, 35. Cook v. Cook, 159 N.C. App. 657, 583 S.E.2d 696, 2003 N.C. App. LEXIS 1528 (2003).

Findings and Conclusions of Law Required. —

In setting amounts for child support, where the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon, and to direct the entry of the appropriate judgment. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982).

Trial court erred in failing to make findings regarding the reasonable needs of a child for support, or regarding its refusal to award support for the time between the filing of suit for support and the entry of the support order. State ex rel. Gillikin v. McGuire, 174 N.C. App. 347, 620 S.E.2d 899, 2005 N.C. App. LEXIS 2364 (2005).

Findings Must Indicate Consideration of Needs and Earnings. —

Conclusions of law must be based upon factual findings specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, and accustomed standard of living of both the child and the parents. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982).

Findings as to Child’s Past and Present Expenses Required. —

In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child’s actual past expenditures and present reasonable expenses. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

Minor child’s hospitalization and its resulting costs constituted a substantial change in circumstances. Thus case was remanded to take into account the parties’ abilities to provide support for the minor child’s medical expenses and to enter an order modifying the support order. Lawrence v. Nantz, 115 N.C. App. 478, 445 S.E.2d 87, 1994 N.C. App. LEXIS 673 (1994).

Award Where Father Has Substantial Income. —

In an action for child support, the court, in making its award, should keep in mind that children of a man of substantial income are entitled to live accordingly. McLeod v. McLeod, 43 N.C. App. 66, 258 S.E.2d 75, 1979 N.C. App. LEXIS 3015 (1979).

Credit for Voluntary Expenditures. —

As to granting of credit towards payment of court-ordered child support for voluntary expenditures, see Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977).

The trial court has a wide discretion in deciding initially whether justice requires that a credit be given under the facts of each case and then in what amount the credit is to be awarded. The better view allows credit when equitable considerations exist which would create an injustice if credit were not allowed. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

Expenses During Visitation. —

Credit is not likely to be appropriate for frivolous expenses or for expenses incurred in entertaining or feeding the child during visitation periods. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

Whether credit is allowed for time spent in visitation with the noncustodial parent depends on the facts of the particular case and is a matter within the court’s discretion, as the fact that a child spends a certain amount of time with one parent does not necessarily mean that his reasonable and necessary living expenses are incurred proportionally. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99, 1984 N.C. App. LEXIS 3440 (1984).

Trial court’s use of one-third of mother’s total fixed expenses to establish reasonable needs of child was neither unfair nor impermissible where the expense figures in mother’s affidavit of financial status included expenses only for herself and the child, as she had not remarried, and furthermore, where the trial court not only found that mother’s living expenses were reasonable, but also reduced several of the figures on the affidavit before making that finding, and where, with the exception of the amount of scheduled visitation, father presented no evidence on which the court could have based other findings regarding the child’s expenses and needs. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99, 1984 N.C. App. LEXIS 3440 (1984).

Parties Cannot Consent to Improperly Based Order. —

The parties, by their consent, cannot enable a trial judge to enter an order not based upon consideration of the several factors listed in subsection (c) of this section and G.S. 50-16.5(a). Williamson v. Williamson, 20 N.C. App. 669, 202 S.E.2d 489, 1974 N.C. App. LEXIS 2521 (1974).

Method of Payment Is Within Discretion of Court. —

In utilizing the provision in subsection (e) of this section that payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein as the court may order, the trial court is vested with broad discretion, and is not limited to ordering any one of the designated methods of payment. In keeping with the court’s powers, an order under this section will be upheld barring an abuse of that discretion. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, 1988 N.C. App. LEXIS 1187 (1988).

Trial court did not abuse its discretion in making its award of lump sum and ongoing monthly child support payments because there was no evidence as to the actual impact on the father’s future income from the lump sum payments; once the actual impact on the father’s income was realized, it could well support a new motion to modify the father’s child support obligation. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

Trial court’s creation of a trust consisting of certain real and personal property owned by the parties in order to secure payment of alimony and child support was a proper exercise of its discretion in applying the provisions of subsection (e) of this section and G.S. 50-16.7(a) and (c) and would be affirmed. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, 1988 N.C. App. LEXIS 1187 (1988).

Amount Not Excessive. —

Where defendant earned one hundred thirty-two dollars ($132.00) a week and had monthly expenses in the amount of fifty-two dollars ($52.00), the court’s order for defendant to pay one hundred dollars ($100.00) per month in child support was not an abuse of discretion; defendant had been paying plaintiff one hundred dollars ($100.00) per week voluntarily for several months prior to the hearing, had testified that he would continue to do so, and the court had made extensive findings regarding the child’s needs, the parents’ estates and earnings, etc. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179, 1989 N.C. App. LEXIS 622 (1989).

Yearly support payment of $37,871.89 held not excessive where payor earned about $200,000.00 per year and where family enjoyed very high standard of living prior to dissolution of marriage and where court found, based on payor’s testimony, that payor could pay any amount court might order up to and including $71,318.04. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Improper Reduction of Child Support Payments. —

Reducing child support payments by subtracting amount of money calculated to represent what custodial parent saves in expenses while the child is visiting with noncustodial parent was improper. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

Consideration of Shared Custody Justified. —

Fact that defendant had sole custody of one of the children and furnished the child’s sole support, while defendant contributed to the support of the two children in plaintiff’s custody, clearly justified the trial court’s consideration of the shared custody factor; trial court was not required to make findings as to how or why this custody arrangement rendered guidelines adopted pursuant to subsection (c1) inapplicable where the guidelines provided for support payments to be based upon the noncustodial parent’s gross income. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441, 1988 N.C. App. LEXIS 1050 (1988).

Imputed Income. —

Because there was no evidence that defendant, who worked for a school system as a psychologist, intentionally depressed his income or otherwise engaged in bad faith, the trial court erred by imputing income to defendant for four weeks during the school district summer recess. Ellis v. Ellis, 126 N.C. App. 362, 485 S.E.2d 82, 1997 N.C. App. LEXIS 357 (1997).

Trial court erred in calculating a father’s child support obligation under G.S. 50-13.4(c) by imputing to the father income based solely on a statement of income made to a bankruptcy court 18 months earlier under circumstances in which the trial court’s order was devoid of findings that the father was deliberately depressing his income or indulging in excessive spending to avoid support. State v. Williams, 179 N.C. App. 838, 635 S.E.2d 495, 2006 N.C. App. LEXIS 2142 (2006).

Trial court’s determination that a husband, who worked as a school teacher, could continue to earn a minimum amount each month from a grading business was reasonably based on the court’s findings of fact regarding the husband’s actual earnings during the year prior to the hearing. Hartsell v. Hartsell, 189 N.C. App. 65, 657 S.E.2d 724, 2008 N.C. App. LEXIS 428 (2008).

Trial court erred by imputing minimum wage to a wife and a husband when it found that neither party acted in bad faith or suppressed his or her respective income to avoid or lessen child support obligations because the trial court’s findings of fact were insufficient to support its conclusions of law; the North Carolina Child Support Guidelines, Child Support Guidelines, G.S. 50-51 , do not authorize choosing a method of imputing income based upon the degree of bad faith found by the trial court. Ludlam v. Miller, 225 N.C. App. 350, 739 S.E.2d 555, 2013 N.C. App. LEXIS 124 (2013).

Trial court’s determination that it was appropriate to impute income to the father should be upheld, but the order had to be remanded for findings detailing how the trial court arrived at the amount of income to be imputed to the father. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691, 2014 N.C. App. LEXIS 232 (2014).

Sufficient Findings by the Court. —

In spite of trial court’s failure to make finding as to husband’s net income, court’s findings regarding gross income of husband and wife along with wife’s net income and children’s expenses was sufficient to satisfy requirement under this section that court give due regard to parties’ estates, earnings, conditions and standard of living in setting child support. Sikes v. Sikes, 98 N.C. App. 610, 391 S.E.2d 855, 1990 N.C. App. LEXIS 452 (1990), aff'd, 330 N.C. 595 , 411 S.E.2d 588, 1992 N.C. LEXIS 16 (1992).

Trial court’s findings supported its decision to use prior years’ income from a business in the calculation of gross income for the determinations of alimony and child support because the trial court questioned whether the husband’s reported income accurately represented his income from the business; the trial court found that the husband’s reported income was not credible. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788, 2019 N.C. App. LEXIS 306 (2019).

In that the trial court’s findings of fact regarding the parties’ monthly gross income were supported by the evidence at trial, the trial court did not abuse the court’s discretion in the court’s determination of the appropriate child support obligation; the mother’s paystubs plainly disclosed her pay raise, bonus, and stock award, and they supported the mother’s testimony and ultimately allowed the trial court to make sufficient findings to resolve the issue of her monthly gross income. Hart v. Hart, 268 N.C. App. 172, 836 S.E.2d 244, 2019 N.C. App. LEXIS 879 (2019).

Income of Business in which Defendant Held Controlling Interest. —

Court neither abused its discretion nor imputed income to defendant when it allocated to him the amount of income earned by the business in which he held 51% and controlled disbursement of corporate funds. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708, 1999 N.C. App. LEXIS 513 (1999).

Use of Accrual Figures. —

Use of accrual figures in the trial court’s calculations was reflective of an appropriate level of gross income available to the defendant and not manifestly unsupported by reason. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708, 1999 N.C. App. LEXIS 513 (1999).

Financial Affidavits. —

On appeal from a motion to modify child support, the court would not consider information outside a father’s financial affidavit, i.e., expert testimony, to determine his expenses for the children; the father had sworn to the truthfulness and completeness of his affidavit, and the parties’ affidavits were competent evidence on which the trial court was allowed to rely in determining the expenses of the parties’ children. Row v. Row, 185 N.C. App. 450, 650 S.E.2d 1, 2007 N.C. App. LEXIS 1803 (2007), cert. denied, 555 U.S. 824, 129 S. Ct. 144, 172 L. Ed. 2d 39, 2008 U.S. LEXIS 6580 (2008).

Father showed no abuse of discretion in the trial court’s findings of his expenses or allocation of those expenses to him because the trial court found the father’s ability to pay child support based upon all of his expenses based upon his affidavit; a reduction of the father’s individual expenses would increase his ability to pay, and it would also increase the child’s individual expenses. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Court’s findings were insufficient to support awarding no support under subsection (c) since the court failed to determine what were the reasonable needs of the minor child for health, education, and maintenance. McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495, 1988 N.C. App. LEXIS 176 (1988).

In an action seeking an increase in child support over the amount set forth in separation agreement, order which contained no specific findings with respect to the actual past or present expenses incurred for the support of the children was insufficient to support the court’s conclusion that the reasonable needs of the children amounted to $2,800.00 per month. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602, 1988 N.C. App. LEXIS 710 (1988).

Where the trial court made no findings whatsoever with respect to the parties’ “estates, earnings, conditions, [and] accustomed standard of living” for the year 1984, its award of retroactive child support would be vacated since it was not based on sufficient findings pertaining to the year 1984. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, 1989 N.C. App. LEXIS 671 (1989).

Trial court erred in ruling it had no authority to modify the income tax deduction provision of the parties’ separation agreement as they requested a recalculation of child support, obliging the trial court to apply the entirety of the guidelines, including not only the worksheets, but also the commentary. Ticconi v. Ticconi, 161 N.C. App. 730, 589 S.E.2d 371, 2003 N.C. App. LEXIS 2270 (2003).

Refusal to Consider Reduction in Income. —

Trial court erred in concluding that reduction in income of father, the custodial parent, due to leaving employment to return to school, could not be considered on motion to increase plaintiff’s child support obligations. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11, 1988 N.C. App. LEXIS 441 (1988).

Remand to Allow Court to Make Findings. —

Appellate court remanded case to allow trial court to make findings concerning the reasonable needs of child, the relative ability of the parents to support the child, and a determination of whether a variation from the Guidelines was appropriate on these grounds. Brooker v. Brooker, 133 N.C. App. 285, 515 S.E.2d 234, 1999 N.C. App. LEXIS 412 (1999).

Mother admitted that clearly, the trial court did not use all of the expenses listed in the parties’ financial affidavits; without more explanation, it was impossible to determine on appeal where the figures used by the trial court came from at all. Moreover, although the trial court’s child support order did contain certain historical costs associated with the children, it included no findings as to the individual costs and expenses the trial court expected to be associated with each child in the future, and, while the trial court did make findings regarding the parents’ particular estates, earnings, conditions, and accustomed standard of living, those were insufficient to remedy the absence of findings explaining the reasonable needs of the children; accordingly, the case was remanded for further findings of fact regarding the amount of child support awarded. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25, 2006 N.C. App. LEXIS 1180 (2006).

Findings Unsupported by Evidence. —

Judge erred by ordering mother to pay four hundred eighty dollars ($480.00) per month in child support; the figures of five hundred dollars ($500.00) and four hundred eighty dollars ($480.00) were not supported by any evidence in the record on appeal and, despite the absence of mother’s financial records, the judge could have determined the child’s reasonable needs through evidence offered by father; however, the figures the judge arrived at were unsupported by father’s testimony, and were not supported by any of the previous orders entered in the case. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580, 1989 N.C. App. LEXIS 539 (1989).

Reduction of Income on Return to School. —

Trial court erred in concluding reduction in income of father, custodial parent, due to leaving employment to return to school, could not be considered on motion to increase plaintiff’s child support obligations. Fischell v. Rosenberg, 90 N.C. App. 254, 368 S.E.2d 11, 1988 N.C. App. LEXIS 441 (1988).

Accustomed Standard of Living. —

Because the trial court unequivocally disregarded the principle that the accustomed standard of living is a factor to be considered and, instead based alimony on the standard of living the parties maintained after the divorce there was prejudicial error. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774, 1997 N.C. App. LEXIS 769 (1997), aff'd, 347 N.C. 570 , 494 S.E.2d 763, 1998 N.C. LEXIS 16 (1998).

Father demonstrated no abuse of discretion in the trial court’s consideration of the conditions or accustomed standard of living of the parties or child because the trial court’s findings demonstrated that it took “due regard” of the conditions and accustomed standard of living of the child and parents; the father did not make any arguments regarding any dispute about the child’s standard of living. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Change in Circumstances Not Shown. —

Because the trial court found that defendant voluntarily quit his job, willfully and intentionally depressed his income, and failed to meet his burden of proof in showing a substantial change of circumstances, the court entered a judgment against defendant denying his motion to reduce child support by reason of substantial change of circumstances. Askew v. Askew, 119 N.C. App. 242, 458 S.E.2d 217, 1995 N.C. App. LEXIS 418 (1995).

Factors Properly Considered. —

In its calculation of child support, the trial court relied on the financial affidavits of both parties to determine each party’s average monthly shared expenses, and defendant incurred significantly higher monthly expenses than plaintiff due to defendant having to pay the mortgages and maintenance on the marital home and vacation home; it was appropriate for the trial court to consider defendant’s increased expenses relating to the two homes in determining child support, and plaintiff’s contention that the trial court erred in not making an even 50/50 allocation as to child support was without merit. Oltmanns v. Oltmanns, 241 N.C. App. 326, 773 S.E.2d 347, 2015 N.C. App. LEXIS 441 (2015).

Father did not demonstrate any abuse of discretion in the trial court’s child support calculations because the father’s total fixed household expenses would be the same, whether a portion was attributed to the child or not, and in determining his ability to pay child support, the trial court gave him credit for 100 percent of his expenses for both of his residences; the trial court’s findings clearly demonstrated how the child support was calculated, and they were supported by the evidence. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Trial court did not its discretion in the calculation of a father’s child support obligation because the child support order was properly based upon the actual custodial schedule stated in the permanent custody order. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

B.Effect of Separation Agreements, Consent Judgments and Arbitration Awards

Separation Agreements Are Not Binding on the Court. —

Valid separation agreements, including consent judgments with respect to marital rights based on such agreements, are not final and binding as to the amount to be provided for the support and education of minor children. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966) (decided under former G.S. 50-13 ).

Valid separation agreements relating to marital and property rights of the parties 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. Perry v. Perry, 33 N.C. App. 139, 234 S.E.2d 449, 1977 N.C. App. LEXIS 2115 , cert. denied, 292 N.C. 730 , 235 S.E.2d 784, 1977 N.C. LEXIS 1183 (1977).

And Cannot Deprive the Court of Its Authority. —

Separation agreement dealing with the custody and the support of the children of the parties cannot deprive the court of its inherent as well as statutory authority to protect the interests of and provide for the welfare of minors. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616, 1976 N.C. App. LEXIS 2631 (1976).

While the court cannot relieve parent of any contractual obligation he assumed to support his child in excess of what the law would require, it can, in the exercise of its inherent and statutory authority to provide for the welfare of minors, order payment of an amount either larger or smaller than that provided for in separation agreement. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

Arbitration Awards Also Remain Reviewable and Modifiable. —

Just as parents cannot by agreement deprive the courts of their duty to promote the best interests of their children, they cannot do so by arbitration. Hence those provisions of an arbitration award concerning custody and child support, like those provisions in a separation agreement, will remain reviewable and modifiable by the court. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

Court Retains Jurisdiction Despite Support Provisions of Separation Agreement or Arbitration Award. —

While the amount of child support agreed on by the parties to a separation agreement is presumed, in the absence of evidence to the contrary, to be just and reasonable, it remains within the authority of the courts pursuant to this Chapter to order payments for support in such amounts as will meet the reasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, and accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The same reasoning applies to an arbitration award concerning child support. Crutchley v. Crutchley, 306 N.C. 518 , 293 S.E.2d 793, 1982 N.C. LEXIS 1491 (1982).

But Separation Agreements and Consent Judgments Cannot Be Ignored. —

Provisions of a valid separation agreement, including a consent judgment based thereon, cannot be ignored or set aside by the court without the consent of the parties. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966) (decided under former G.S. 50-13 ).

A 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, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

Level of Support in Separation Agreement Is Only One Factor in Decision. —

When a trial court is called upon for the first time to determine the appropriate level of child support payments agreed upon in separation agreements, the “presumption” of reasonableness of the agreed upon level of support in such cases is one of evidence only; that is, the agreed upon level of support constitutes some evidence of the appropriate level of support, but that this evidence must be weighed and considered by the trial court together with all other relevant and competent evidence bearing upon the statutory factors set out in subsection (c) of this section; in other words, the trial court is writing upon a clean slate, and the previously agreed upon level of support is but one factor to be considered. Morris v. Morris, 92 N.C. App. 359, 374 S.E.2d 441, 1988 N.C. App. LEXIS 1050 (1988).

When Agreement May Be Modified. —

A separation agreement is a contract between the parties, and the court is without power to modify it except (1) to provide for adequate support for minor children, and (2) with the mutual consent of the parties thereto where rights of third parties have not intervened. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616, 1976 N.C. App. LEXIS 2631 (1976).

Amount Set by Agreement Is Presumptively Just and Reasonable. —

Where parties to a separation agreement agree upon the amount for 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. Fuchs v. Fuchs, 260 N.C. 635 , 133 S.E.2d 487, 1963 N.C. LEXIS 784 (1963); Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

It was not an abuse of discretion to decline to reduce a father’s child support obligation for a prior period because (1) the obligation arose from an unincorporated separation agreement, and (2) contractual damages for the father’s failure to pay support could not be reduced. Lasecki v. Lasecki, 257 N.C. App. 24, 809 S.E.2d 296, 2017 N.C. App. LEXIS 1054 (2017).

And May Not Be Changed Absent Change in Conditions. —

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. McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E.2d 616, 1976 N.C. App. LEXIS 2631 (1976).

Trial court impermissibly modified a child support order by computing increases in the father’s salary and applying those increases to payments over an 18-year period because the trial court failed to find a substantial change of circumstances as required under G.S. 50-13.7(a) (2009); the incorporated agreement provided automatic annual increases in child support based on the father’s salary and failed to consider the needs of the children or other factors contained in G.S. 50-13.4(c). Wilson v. Wilson, 214 N.C. App. 541, 714 S.E.2d 793, 2011 N.C. App. LEXIS 1756 (2011).

Or Absent Need for Increase. —

Where parties to a separation agreement agree upon the amount for 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. Upon motion, a trial court may not order an increase in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on grounds that the father’s income has increased so that he is able to pay a larger amount. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982).

Child Referred to in Consent Judgment Is Under Protective Custody of Court. —

Even though an order requiring father to make payments for the support of his child was entered by consent of the parents, the child was under the protective custody of the court. Smith v. Smith, 247 N.C. 223 , 100 S.E.2d 370, 1957 N.C. LEXIS 656 (1957).

The effect of an order setting a lesser amount of child support than that provided for by separation agreement is not to deprive the custodial parent of her contractual right to recover the sums provided for in the agreement, but to limit her contempt remedy to the sums provided for by the court order. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

Right of Party to Separation Agreement to Bring Action. —

When a case is properly before it, the court has the duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. Thus, the existence of a valid separation agreement containing provisions relating to the custody and support of minor children does not prevent one of the parties to the agreement from instituting an action for a judicial determination of those same matters. Winborne v. Winborne, 41 N.C. App. 756, 255 S.E.2d 640, 1979 N.C. App. LEXIS 2719 , cert. denied, 298 N.C. 305 , 259 S.E.2d 918, 1979 N.C. LEXIS 1624 (1979).

The existence of a valid separation agreement relating to child support or custody does not prevent one of the parties from instituting an action for a judicial determination of those same matters. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

As to effect of reconciliation and resumption of cohabitation on a separation agreement, see Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, 1980 N.C. App. LEXIS 2758 (1980).

No Obligation to Support Child Past Majority Despite Disability. —

Where mother’s testimony offered at the hearing showed that son was 18 years old, had graduated from high school, had a part-time job, and was attempting to raise money to go to college, and mother further testified that son was not a normal 18 year old since he was involved in a wreck, trial court was without authority to order father to pay child support arrearages of five hundred dollars ($500.00); the evidence showed that pursuant to subdivision (c)(2) of this section, defendant was relieved of any obligation to support his son after his graduation from high school on June 5, 1988, and even if mother’s evidence was sufficient to show that son was physically or mentally incapable of self-support, there was no longer a statutory obligation for parents to support their disabled adult children. State v. Benfield, 95 N.C. App. 451, 382 S.E.2d 776, 1989 N.C. App. LEXIS 745 (1989).

Obligation to Pay Is Independent of Compliance with Unrelated Provisions in Agreement. —

The duty of a parent to pay child support as agreed to in a separation agreement will not be excused because the other parent does not comply with other provisions of the separation agreement unrelated to the financial support of the children. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

Defendant’s obligation to pay child support as provided in the separation agreement is not dependent upon plaintiff’s compliance with visitation, nonharassment, or noncohabitation provisions in the same agreement. To hold otherwise would punish the children for the misbehavior of a parent. Nisbet v. Nisbet, 102 N.C. App. 232, 402 S.E.2d 151, 1991 N.C. App. LEXIS 293 (1991).

V.Termination of Obligation

A.In General

When Legal Obligation to Support Child Ends. —

The statutes concerning child support all use the term “minor,” “minor child” or “minor children,” never referring to age 21. Therefore, in substituting the new meaning of “minor” provided by Chapter 48A into the statutes, the legal obligation to support one’s child ends at age 18, absent a showing that the child is insolvent, unmarried and physically or mentally incapable of earning a livelihood as contemplated by G.S. 50-13.8 . Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348, 1972 N.C. App. LEXIS 2033 , cert. denied, 281 N.C. 314 , 188 S.E.2d 897, 1972 N.C. LEXIS 1062 (1972).

In the absence of an enforceable contract otherwise obligating a parent, North Carolina courts have no authority to order child support for a child who has attained the age of majority, unless the child has not completed secondary schooling, or, pursuant to G.S. 50-13.8 , the child is mentally or physically incapable of self-support. Bridges v. Bridges, 85 N.C. App. 524, 355 S.E.2d 230 (1987). In accord with second paragraph in the main volume. See Pieper v. Pieper, 90 N.C. App. 405, 368 S.E.2d 422, 1988 N.C. App. LEXIS 532 , aff'd, 323 N.C. 617 , 374 S.E.2d 275, 1988 N.C. LEXIS 707 (1988).

Effect of One of Several Children Reaching Age 18. —

While child support obligations ordered by a court terminate upon the child reaching age 18, unless the child is otherwise emancipated prior to reaching age 18 or the trial court in its discretion continues to enforce the payment obligation after the child reaches age 18 and while the child is in primary or secondary school, when one of two or more minor children for whom support is ordered reaches age 18, and when the support ordered to be paid is not allocated as to each individual child, the supporting parent has no authority to unilaterally modify the amount of the child support payment. The supporting parent must apply to the trial court for modification. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656, 1991 N.C. App. LEXIS 872 (1991).

Cases holding that where one of two minor children reaches the age of 18, a trial court may retroactively modify child support arrearages when equitable considerations exist which would create an injustice if modification is not allowed were decided before G.S. 50-13.10 became effective on October 1, 1987. Under this statute, if the supporting party is not disabled or incapacitated, a past due, vested child support payment is subject to divestment only as provided by law, and if, but only if, a written motion is filed and due notice is given to all parties before the payment is due. Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656, 1991 N.C. App. LEXIS 872 (1991).

Support Improperly Terminated. —

Where father unilaterally terminated child support payments after his son reached the age of 18 and had failed to make satisfactory progress towards graduation from high school, the support payments were improperly terminated. Leak v. Leak, 129 N.C. App. 142, 497 S.E.2d 702, 1998 N.C. App. LEXIS 412 (1998).

“Minor Child” under Prior Law. —

Before the enactment of Chapter 48A, it was evident that the meaning of “minor child” within the purview of the custody and support statutes contemplated the common-law age of majority, age 21. Shoaf v. Shoaf, 14 N.C. App. 231, 188 S.E.2d 19, 1972 N.C. App. LEXIS 2091 , rev'd, 282 N.C. 287 , 192 S.E.2d 299, 1972 N.C. LEXIS 936 (1972).

Emancipation Decree Required. —

In a question of first impression, the appellate court held that, when the child of divorced parents left the custodial parent’s home to live on his own, but was not decreed by a court to be legally emancipated, the non-custodial parent’s obligation to pay child support did not automatically terminate, because Article 35 of the Juvenile Code precluded the appellate court from accepting common law methods of emancipation for the purposes of terminating child support payments; thus, the father’s child support obligations could not have automatically terminated absent a decree of emancipation. Morris v. Powell, 269 N.C. App. 496, 840 S.E.2d 223, 2020 N.C. App. LEXIS 113 (2020).

B.Effect of Separation Agreement, Consent Judgment, etc

A parent may contract to support his or her children past the age of majority, and the court has power to enforce such a contract just as it would any other. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131, 1980 N.C. App. LEXIS 2745 (1980).

But Court Cannot Enlarge on Such Obligation. —

Since the duty to support after the age of majority arises in contract, the court may not enlarge upon the obligation agreed to by the parties. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131, 1980 N.C. App. LEXIS 2745 (1980).

Any attempt by the court to enlarge upon the obligation arising under contract by extending the duty of support beyond the age of majority would be void for lack of subject matter jurisdiction. Harding v. Harding, 46 N.C. App. 62, 264 S.E.2d 131, 1980 N.C. App. LEXIS 2745 (1980).

Consent Judgment Providing for Support Until Majority. —

A father’s legal liability for the support of his son born on January 13, 1953, by reason of a consent judgment dated June 11, 1970, providing that payments for child support should continue until such time as said minor child reached his majority or was otherwise emancipated, would not continue until his son became 21 years of age. Shoaf v. Shoaf, 282 N.C. 287 , 192 S.E.2d 299, 1972 N.C. LEXIS 936 (1972).

Support for Full-Time Student. —

It was error for a trial court to terminate support solely on the finding that a child was not a “full-time” student based on language in a separation agreement, without consideration of G.S. 50-13.4 ; the child likely attended school regularly and made satisfactory progress towards graduation since he received a diploma in 2013. Moreover, the trial court also should have considered its discretion to terminate support when the child turned 18, but prior to his high school graduation. Malone v. Hutchinson-Malone, 246 N.C. App. 544, 784 S.E.2d 206, 2016 N.C. App. LEXIS 347 (2016).

VI.Separate Identification of Allowances

Allowances to Be Separated. —

The allowances to be separated in the order, as required by subsection (e) of this section, are the support payments for the minor child or children and the amounts ordered for alimony or alimony pendente lite. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Court Need Not Designate Amounts for Each Child. —

Subsection (e) of this section does not require the trial court to designate the amount of support payments for each child, although such designation may prove helpful to simplify any future adjustments or modifications. Brooks v. Brooks, 12 N.C. App. 626, 184 S.E.2d 417, 1971 N.C. App. LEXIS 1420 (1971).

Failure to Identify Purpose of Support as Health, Education and Maintenance Is Not Error. —

The better practice is for the court’s order to relate that the payment ordered under this section is the amount necessary to meet the reasonable needs of the child for health, education, and maintenance, but the failure of the court to do so does not constitute reversible error. Andrews v. Andrews, 12 N.C. App. 410, 183 S.E.2d 843, 1971 N.C. App. LEXIS 1378 (1971); Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, 1978 N.C. App. LEXIS 3045 , cert. denied, 295 N.C. 261 , 245 S.E.2d 778, 1978 N.C. LEXIS 999 (1978).

Failure to Separate Allowances Held Error. —

The trial court erred in failing to separately state and identify the allowances for alimony pendente lite and child support as required by subsection (e) of this section. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46, 1973 N.C. App. LEXIS 1497 (1973).

VII.Findings and Conclusions

Judge Must Make Findings of Fact and Conclusions of Law. —

In setting amounts for child support, where the trial court sits without a jury, the judge is required to find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982); Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99, 1984 N.C. App. LEXIS 3440 (1984).

The requirements for findings of fact applicable to orders for alimony are also applicable to the determination of reasonable and adequate child support. Gebb v. Gebb, 77 N.C. App. 309, 335 S.E.2d 221, 1985 N.C. App. LEXIS 4088 (1985).

The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment, and the legal conclusions which underlie it, represent a correct application of the law. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99, 1984 N.C. App. LEXIS 3440 (1984).

Effective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order’s rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Gibson v. Gibson, 68 N.C. App. 566, 316 S.E.2d 99, 1984 N.C. App. LEXIS 3440 (1984).

Remand for Further Findings. —

The findings of fact in a case for child support, were insufficient to determine whether the trial court gave due regard to the estates of the parties and the case must be remanded for further findings on this matter, even though there was ample evidence contained in the record about the estates of both parties. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816, 1987 N.C. App. LEXIS 3198 (1987).

Case was remanded for additional fact-finding where the district court failed to identify the presumptive amount of support due under the Guidelines and where there was no analysis of the reasonable needs of the two minor children, other than a finding that plaintiff’s child care costs for one of the children was reasonable. Rowan County DSS v. Brooks, 135 N.C. App. 776, 522 S.E.2d 590, 1999 N.C. App. LEXIS 1231 (1999).

Trial court erred by failing to explain in its findings of fact why it did not award child support from the time of the filing of the paternity and child support complaint; judgment was reversed and case was remanded to trial court for further findings. State v. Hinton, 147 N.C. App. 700, 556 S.E.2d 634, 2001 N.C. App. LEXIS 1254 (2001).

Trial court was required to conduct a hearing when the trial court neither made findings related to the needs of the children at the time of a modification hearing nor concluded whether the presumption of reasonableness in a separation agreement was rebutted. Pataky v. Pataky, 160 N.C. App. 289, 585 S.E.2d 404, 2003 N.C. App. LEXIS 1797 (2003), aff'd, 359 N.C. 65 , 602 S.E.2d 360, 2004 N.C. LEXIS 1120 (2004).

A case involving a motion to modify child support under G.S. 50-13.7 , was remanded for further findings of fact because, in entering an order deviating from the North Carolina Child Support Guidelines, the trial court did not make sufficient findings of fact regarding the reasonable needs of the children; the order only made findings regarding health insurance and the fact that the children did not need private schooling. Beamer v. Beamer, 169 N.C. App. 594, 610 S.E.2d 220, 2005 N.C. App. LEXIS 673 (2005).

Case was remanded for an order addressing the validity of a mother’s request for a deviation from the child support guidelines because the trial court failed to make specific findings regarding the ability of each parent to provide support and the accustomed standard of the living of the children; given the absence of findings of fact, the court of appeals had no way to evaluate the correctness of the trial court’s ruling that the guidelines would meet the reasonable needs of the children. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30, 2014 N.C. App. LEXIS 1339 (2014).

Trial court’s failure to make findings of fact addressing the relative ability of the parents to provide support and the expenses that are needed to meet the children’s needs requires a reviewing court to remand the relevant case to the trial court for the entry of a new order containing additional findings of fact. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30, 2014 N.C. App. LEXIS 1339 (2014).

In the absence of sufficient factual findings addressing the issue of a mother’s ability to pay for children’s education at a private school, the court of appeals could not determine whether the trial court abused its discretion by requiring her to pay for the cost of the education; the trial court, despite the existence of a request for a deviation from the child support guidelines, did not make any findings addressing the issue of the parties’ relative abilities to pay the cost. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30, 2014 N.C. App. LEXIS 1339 (2014).

Trial court had to revisit its calculations of gross income and net income used to determine child support and alimony because it had to make additional findings to support its determination of a husband’s business income, which was used to calculate gross income and determine child support; the trial court also had to make additional findings to account for the husband’s mandatory retirement deduction and his reasonable health insurance expenses in the calculation of his net income. Wise v. Wise, 264 N.C. App. 735, 826 S.E.2d 788, 2019 N.C. App. LEXIS 306 (2019).

Miscalculation of $736 for the month of December 2016 did not require reversal and remand to the trial court because $736 was less than 2 percent of the total arrears of $52,659, and the parties would likely each incur more than $736 in attorney fees in a remand for the trial court to make that small change to the arrears ordered; the de minimis error did not warrant reversal. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Contents of Findings. —

There are no set guidelines as to what the findings of fact concerning the needs of the minor children must contain. The appellate courts of this State require only that the findings be based on competent evidence as to what the needs of the children are, and that such findings sustain the conclusion that the support payments ordered are in such amount as to meet the reasonable needs of the child. Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205, 1983 N.C. App. LEXIS 2949 (1983).

Adequate findings supported an order requiring a husband to pay children’s private school tuition because (1) findings mandated by the Child Support Guidelines were not required, as the Child Support Guidelines did not apply, and (2) it was found that private school was part of the children’s accustomed standard of living, the parties were able to pay the tuition, and the parties had agreed to privately educate the children. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Findings supported not treating payments from a father’s parents as income because (1) the father testified the payments were loans, and (2) no express, separate, findings were required. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Findings did not support including payments from a mother’s fiance as the mother’s income because evidence indicating the payments were the fiance’s share of household expenses was unresolved. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Trial court could find an investment account was a mother’s property because the record supported finding income from the account either belonged to the mother or was given to the mother to use for the mother’s benefit, as the account was in the mother’s name, the mother paid taxes on the account’s dividend income, and nothing showed the mother was unable to use the income from that account. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Trial court’s findings supported denying a mother’s request for child therapy expenses because there was some evidence the mother’s conduct necessitated the expenses. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Findings crediting a father for a mother’s car payments were insufficient because it was not found that an injustice would otherwise exist. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Trial judge must make conclusions of law based on factual findings specific enough to show the appellate courts that the judge took due regard of the parties’ estates; there is no requirement the trial court’s findings use “magic words” such as “estates” or “accustomed standard of living” where the findings demonstrate that it did consider the evidence as to these factors in setting the child support obligation. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Findings Must Be Specific. —

Where the trial court sits without a jury, the judge is required to make factual findings specific enough to indicate to the appellate court that due regard was taken of the factors enumerated in this section. Byrd v. Byrd, 62 N.C. App. 438, 303 S.E.2d 205, 1983 N.C. App. LEXIS 2949 (1983).

In orders of child support, the court should make findings of specific facts (e.g. incomes, estates) to support a conclusion as to the relative abilities of the parties to provide support. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466, 1978 N.C. App. LEXIS 2557 (1978).

Without findings relating to the parties’ reasonable expenses, there is no basis for a determination as to the parties’ relative abilities to provide the support necessary to meet the reasonable needs of the children. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602, 1988 N.C. App. LEXIS 710 (1988).

In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child’s actual past expenditures and present reasonable expenses. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602, 1988 N.C. App. LEXIS 710 (1988).

Case would be remanded for additional findings regarding the income or loss, if any, of one of defendant’s businesses where the trial court’s order failed to reflect its treatment of these figures. Cauble v. Cauble, 133 N.C. App. 390, 515 S.E.2d 708, 1999 N.C. App. LEXIS 513 (1999).

Findings Must Cover Factors in Subsection (c). —

The trial court must hear evidence on each of the factors listed in subsection (c) of this section and substantiate its conclusions of law by making findings of specific facts on each of the listed factors. Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, 1983 N.C. App. LEXIS 3227 (1983).

Conclusions of law must be based upon factual findings specific enough to indicate to the appellate court that the judge below took due regard of the particular estates, earnings, conditions, and accustomed standard of living of both the child and the parents. Dishmon v. Dishmon, 57 N.C. App. 657, 292 S.E.2d 293, 1982 N.C. App. LEXIS 2697 (1982); Newman v. Newman, 64 N.C. App. 125, 306 S.E.2d 540, 1983 N.C. App. LEXIS 3227 (1983); In re Botsford, 75 N.C. App. 72, 330 S.E.2d 23, 1985 N.C. App. LEXIS 3613 (1985); Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

To support an award of payment for support, the judgment of the trial court should contain findings of fact which sustain the conclusion of law that the support payments ordered are in such amount as to meet the reasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular care. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26, 1977 N.C. App. LEXIS 1873 (1977); Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240, 1979 N.C. App. LEXIS 2589 (1979); Grimes v. Grimes, 78 N.C. App. 208, 336 S.E.2d 664, 1985 N.C. App. LEXIS 4243 (1985).

The trial court must make specific findings on each of the factors specified in subsection (c) of this section. In addition, the case law may require certain findings, as when the award is based on earning capacity rather than present income. Once the trial court has made such findings, they are conclusive if supported by any evidence, even if there is evidence contra. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

The trial judge must at least make findings sufficiently specific to indicate proper consideration of each of the factors established by subsection (c) of this section for a determination of child support. Spencer v. Spencer, 70 N.C. App. 159, 319 S.E.2d 636, 1984 N.C. App. LEXIS 3648 (1984).

Orders for child support must be based upon the interplay of the trial court’s conclusions of law as to the amount of support necessary to meet the reasonable needs of the child and the relative abilities of the parents to provide that amount. These conclusions must, in turn, be based upon factual findings sufficiently specific to indicate to the appellate court that the trial court took due regard of the estates, earnings, conditions and accustomed standard of living of both child and parents. Little v. Little, 74 N.C. App. 12, 327 S.E.2d 283, 1985 N.C. App. LEXIS 3356 (1985).

To comply with subsection (c) of this section, the order for child support must be premised upon the interplay of the trial court’s conclusions of law as to the amount of support necessary to meet the reasonable needs of the child and the relative ability of the parties to provide that amount. To support these conclusions of law, the court must also make specific findings of fact so that an appellate court can ascertain whether the judge below gave due regard to the facts of the particular case. Such findings are necessary to an appellate court’s determination of whether the judge’s order is sufficiently supported by competent evidence. Where the record discloses sufficient evidence to support the findings, it is not the Supreme Court’s task to determine de novo the weight and credibility to be given the evidence contained in the record on appeal. Plott v. Plott, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985).

Conclusions must be based upon factual findings sufficiently specific to indicate that the trial court took “due regard” of the factors enumerated in the statute. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

The trial court must hear evidence and make findings of fact on the parents’ income, estates and present reasonable expenses to determine the parties’ relative ability to pay. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

To comply with subsection (c), the trial court is required to make findings of fact with respect to the factors listed in the statute. Holderness v. Holderness, 91 N.C. App. 118, 370 S.E.2d 602, 1988 N.C. App. LEXIS 710 (1988).

Fact that the record contains evidence from which the necessary findings could have been made does not have the effect of absolving the trial court from the obligation to actually make the required findings concerning the needs of the children and the parties’ relative abilities to pay in a case in which a deviation from the guidelines has been requested. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30, 2014 N.C. App. LEXIS 1339 (2014).

Trial court’s findings of fact and conclusions of law demonstrated “due regard” to the factors required by subsection (c), and thus, it did not abuse its discretion in the calculation of a father’s child support obligation; the trial court did not abuse its discretion in determining it would not consider a bonus the mother received, and both parties’ estates were approximately the same, neither was taking distributions from investments, and neither would be required to deplete his or her assets. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Giving “due regard” to the estates of the parties does not require detailed findings as to the value of each individual asset but requires only that the trial court consider the evidence and make sufficient findings addressing its determination regarding the estates to allow appellate review. Kleoudis v. Kleoudis, 271 N.C. App. 35, 843 S.E.2d 277, 2020 N.C. App. LEXIS 295 (2020).

Findings must be based upon competent evidence, and it is not enough that there may be evidence, in the record sufficient to support findings which could have been made. The trial court must itself determine what pertinent facts are actually established by the evidence before it. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

Actual Past Expenditures Must Be Found. —

To determine the amount of support necessary to meet the reasonable needs of the child for health, education and maintenance, the court must make findings of specific facts as to what actual past expenditures have been. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

To determine the amount of support necessary to meet the reasonable needs of the child for health, education and maintenance (which are conclusions of law), the court must make findings of specific facts as to what actual past expenditures have been. Where past expenditures are below subsistence, due regard, of course, must be given to meeting the reasonable needs of the child. Steele v. Steele, 36 N.C. App. 601, 244 S.E.2d 466, 1978 N.C. App. LEXIS 2557 (1978).

In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child’s actual past expenditures and present reasonable expenses. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986); Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

Conclusion as to Reasonableness of Personal Expenses. —

In a child support case, the trial court should be satisfied that personal expenses itemized in the parties’ balance sheets are reasonable under all the circumstances before making a determination of need or liability, and though absence of a specific conclusion as to reasonableness will not necessarily be held for error, the better practice is for the order to contain such a conclusion. Coble v. Coble, 300 N.C. 708 , 268 S.E.2d 185, 1980 N.C. LEXIS 1123 (1980).

The determination of what portion of claimed expenses is reasonable, and what portion is unreasonable, in arriving at an amount necessary to meet the reasonable needs of the child, requires an exercise of judgment and is therefore not a question of fact but a conclusion of law. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

Error to Order Support Absent Appropriate Findings. —

Where the court does not make appropriate findings based on competent evidence as to what are the reasonable needs of the children for health, education and maintenance, it is error to direct payments for their support. Hampton v. Hampton, 29 N.C. App. 342, 224 S.E.2d 197, 1976 N.C. App. LEXIS 2472 (1976); Poston v. Poston, 40 N.C. App. 210, 252 S.E.2d 240, 1979 N.C. App. LEXIS 2589 (1979).

In a child support action, where the trial court failed to make findings as to the actual needs of the parties’ minor child or the expenses of the parties, its order directing child support payments was erroneous. Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460, 1981 N.C. App. LEXIS 2566 (1981).

Appellate court reversed the trial court’s judgment ordering a father who was in college to pay $95 per month in child support because the trial court based its order on the father’s earning capacity but did not find that the father was deliberately suppressing his income to avoid family responsibilities. State v. Williams, 163 N.C. App. 353, 593 S.E.2d 123, 2004 N.C. App. LEXIS 365 (2004).

Trial court erred by failing to make sufficient findings to support a deviation from the North Carolina Child Support Guidelines because the trial court’s findings regarding the father’s gross income did not include his bonuses; the trial court did not make findings regarding the reasonable needs of the child for support; and the trial court failed to make sufficient findings regarding the mother’s expenses. Wilkinson v. Kincheloe, 278 N.C. App. 62, 862 S.E.2d 28, 2021- NCCOA-269, 2021 N.C. App. LEXIS 274 (2021).

Without findings relating to the parties’ reasonable expenses, there is no basis for a determination as to the relative abilities of the parents to provide the support necessary to meet the reasonable needs of the children. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

Where child support for defendant’s five children by three different mothers, set pursuant to the guidelines, amounted to 66% of his gross income, the trial court’s duty was to determine whether this support exceeded the reasonable needs of each child, whether it was unjust or inappropriate, and whether defendant had “sufficient income to maintain a minimum standard of living based on the 1997 federal poverty level for one person.” Buncombe County ex rel. Blair v. Jackson, 138 N.C. App. 284, 531 S.E.2d 240, 2000 N.C. App. LEXIS 608 (2000).

Award of Reimbursement for Past Support. —

The trial court must make specific factual findings to support not only an award of future support but also to support an award of reimbursement for past support of the child. Buff v. Carter, 76 N.C. App. 145, 331 S.E.2d 705, 1985 N.C. App. LEXIS 3821 (1985).

Findings as to Suppression of Income. —

The trial court erred in awarding child support based upon each party’s “earning capacity” without any findings as to whether either party deliberately suppressed his or her income to avoid his or her support obligation. Bowers v. Bowers, 141 N.C. App. 729, 541 S.E.2d 508, 2001 N.C. App. LEXIS 13 (2001).

Finding as to Income of Supporting Spouse. —

Although a proper finding pertaining to the income of the supporting spouse must be based on present, as opposed to past, income, there is no rule that requires a specific finding as to the income of the supporting spouse on the precise date of the hearing. Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986).

Findings calculating a father’s business income sufficiently relied on a year’s first eight months because predicting the final quarter’s income was too speculative. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Proper Findings Not Made for Deviation from Guidelines. —

Trial court failed to make proper findings when it deviated from the child support guidelines; while the trial court made findings regarding the parties’ average monthly incomes, health insurance costs for the child, and work related child care costs for the child, nothing addressed the needs of the child or the parties’ ability to pay, and the order failed to meet statutory and case law requirements. Sarno v. Sarno, 255 N.C. App. 543, 804 S.E.2d 819, 2017 N.C. App. LEXIS 756 (2017).

Findings Held Insufficient. —

Where the trial did not make an assessment of the child’s needs, and found that plaintiff ’s expenses exceeded her income and that her unwieldy credit card obligations were caused by defendant’s failure to pay $220 in support to her in a timely manner when she had custody of both children, the findings of fact were insufficient to support the conclusion that plaintiff should not be required to support her minor children; defendant’s $220 delinquency in child support payments did not mean that plaintiff ’s expenses were reasonable, and the trial judge made no findings upon which to conclude that defendant had the ability to support both children. Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428, 1988 N.C. App. LEXIS 718 (1988).

Appellate court would remand case where the trial court failed to make findings as to what the child support amount would be under the applicable Guidelines, as to the child’s reasonable needs, and as to whether the greater weight of the evidence established that application of the presumptive Guidelines amount would be “unjust or inappropriate.” Sain v. Sain, 134 N.C. App. 460, 517 S.E.2d 921, 1999 N.C. App. LEXIS 808 (1999).

Trial court’s finding that a husband was not under any other child support obligation pursuant to a court order or other written obligation flew in the face of the uncontroverted evidence presented at trial by both parties that was under a district court order to provide child support payments for a child born from his subsequent marriage; thus, the trial court’s finding was not supported by competent evidence in the record, was not sufficient to establish that the trial court took due regard of defendant’s estates, earnings, conditions and other facts of the particular case as required under G.S. 50-13.4(c), and the child support order was reversed. Zaliagiris v. Zaliagiris, 164 N.C. App. 602, 596 S.E.2d 285, 2004 N.C. App. LEXIS 1041 (2004).

Adequate findings did not support a prospective child support order because the trial court did not consider the inheritance of the wife to whom custody was awarded. Smith v. Smith, 247 N.C. App. 135, 786 S.E.2d 12, 2016 N.C. App. LEXIS 446 (2016).

Findings calculating a mother’s capital gains income were insufficient because the findings did not support using the mother’s past capital gains to find current capital gains. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Findings calculating a mother’s dividend income were insufficient because it was unknown if income from assets that were previously sold were used. Kaiser v. Kaiser, 259 N.C. App. 499, 816 S.E.2d 223, 2018 N.C. App. LEXIS 474 (2018).

Trial court’s use of a father’s historical income to calculate prospective child support in the form of arrears dating back to the filing of the mother’s motion to modify child support was in error because the trial court made no finding to support the use of that method; the trial court made no findings providing a rationale for using the father’s income for each individual year, rather than using his current income to calculate child support owed back to the filing of the mother’s motion. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

VIII.Appellate Review

Standard for reviewing child support orders resembles that for reviewing awards of custody, in that the amount of child support allowed by the trial judge will be disturbed only when there is an abuse of discretion. Dixon v. Dixon, 67 N.C. App. 73, 312 S.E.2d 669, 1984 N.C. App. LEXIS 3006 (1984).

No Appellate Jurisdiction to Hear Appeal of Interlocutory Support Order. —

Appellate court had no jurisdiction to hear an appeal of a denial of child support modification because: (1) an order continuing an existing order until legally interdependent custody issues could be heard was interlocutory, as, without knowing the custody arrangement, a trial court could not find which child support worksheet to use, or whether to deviate from the guidelines; (2) the order did not resolve the custody issue; and (3) allowing an appeal would lead to an unnecessary appeal. Gray v. Peele, 235 N.C. App. 554, 761 S.E.2d 739, 2014 N.C. App. LEXIS 891 (2014).

Support Award Will Not Be Disturbed Absent Abuse of Discretion. —

The amount of child support awarded is in the discretion of the trial judge and will be disturbed only on a showing of abuse of that discretion. Coggins v. Coggins, 260 N.C. 765 , 133 S.E.2d 700, 1963 N.C. LEXIS 814 (1963); Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539, 1969 N.C. App. LEXIS 1156 (1969); Sawyer v. Sawyer, 21 N.C. App. 293, 204 S.E.2d 224, 1974 N.C. App. LEXIS 1783 , cert. denied, 285 N.C. 591 , 205 S.E.2d 723, 1974 N.C. LEXIS 1031 (1974); Gibson v. Gibson, 24 N.C. App. 520, 211 S.E.2d 522, 1975 N.C. App. LEXIS 2418 (1975); Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, 1977 N.C. App. LEXIS 1875 (1977); Minges v. Minges, 53 N.C. App. 507, 281 S.E.2d 88, 1981 N.C. App. LEXIS 2614 (1981); Peters v. Elmore, 59 N.C. App. 404, 297 S.E.2d 154, 1982 N.C. App. LEXIS 3150 (1982); Plott v. Plott, 65 N.C. App. 657, 310 S.E.2d 51, 1983 N.C. App. LEXIS 3538 (1983), aff'd in part and rev'd in part, 313 N.C. 63 , 326 S.E.2d 863, 1985 N.C. LEXIS 1519 (1985); Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

The trial court’s consideration of the factors contained in subsection (c) of this section is an exercise in sound judicial discretion, and if its findings are supported by competent evidence in the record, its determination as to the proper amount of support will not be disturbed on appeal. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

Even If Evidence Is Conflicting. —

An order for child support is a question of fairness to all parties involved. It will not be disturbed on appeal absent an abuse of discretion by the trial judge, even if there is conflicting evidence. Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

In determining the amount of alimony and child support to be awarded, the trial judge must follow the requirements of this section. The amount is a reasonable subsistence, to be determined by the trial judge in the exercise of a judicial discretion from the evidence before him. His determination is reviewable, but it will not be disturbed in the absence of a clear abuse of discretion. Beall v. Beall, 290 N.C. 669 , 228 S.E.2d 407, 1976 N.C. LEXIS 1174 (1976).

Finding of Ability to Pay Is Conclusive When Supported by Evidence. —

The trial court’s discretion as to the amount of child support awarded is not absolute and unreviewable. The order must be based not only on the needs of the child, but also on the ability of the father to meet the needs. But where there is a finding of ability to pay, supported in the record by competent evidence, that finding will be conclusive. Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, 1977 N.C. App. LEXIS 1875 (1977).

Findings Regarding Standard of Living And Reasonableness of Expenses. —

Without findings regarding the child’s or parties’ accustomed standard of living and the reasonableness of the expenses in light of that standard of living, the court of appeals cannot determine whether the trial court considered the standard of living factor and whether the trial court’s finding of reasonable needs is supported by the evidence. Ferguson v. Ferguson, 238 N.C. App. 257, 768 S.E.2d 30, 2014 N.C. App. LEXIS 1339 (2014).

Remand for Further Findings. —

Where the trial judge found that the reasonable expenses of child were “in excess of $500,” while the child’s mother claimed that the child’s expenses were $855.16, and found the reasonable living expenses of the child’s father to be $800, rejecting his claimed figure of $1,196.80, lack of findings as to what claimed expenses of the child or the father the court considered unreasonable would require the appellate court to vacate the order and remand the cause for further findings. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595, 1986 N.C. App. LEXIS 2259 (1986).

Failure to Assign Error to Trial Court’s Findings. —

Trial court’s consideration of a child’s needs, the mother’s share of those needs, and the father’s contribution to those needs was found to have been reasonable and adequate under circumstances in which the father did not assign error to the trial court’s findings; the trial court’s finding that the amount in the parties’ agreement was inadequate and thus did not influence the trial court’s decision, or the trial court’s total calculated reasonable expenses. Pascoe v. Pascoe, 183 N.C. App. 648, 645 S.E.2d 156, 2007 N.C. App. LEXIS 1124 (2007).

Presumption Allowing Modification. —

The presumption, created in a 1994 revision, allowing modification of a child support order which is at least three years old, when there is a disparity of 15% or more between the amount of support payable under the original order and the amount owed based on the parties’ current income and expenses, is within the scope of the legislative mandate to ensure adequate child support awards over time. Garrison v. Connor, 122 N.C. App. 702, 471 S.E.2d 644, 1996 N.C. App. LEXIS 541 (1996).

Stay Properly Denied. —

Trial court did not err in denying the father’s motion to stay execution and enforcement of the child support order, as, under G.S. 50-13.4 , such orders were enforceable by proceedings for civil contempt during the pendency of an appeal and not subject to setting bond under G.S. 1-289(a1) . Smith v. Smith, 247 N.C. App. 166, 785 S.E.2d 434, 2016 N.C. App. LEXIS 437 (2016).

IX.Remedies

A.In General

Court Has Broad Discretion Under Subsection (e). —

The court is not limited to ordering one method of payment, to the exclusion of the others provided in subsection (e) of this section. The legislature’s use of the disjunctive and the phrase “as the court may order” shows that the court is to have broad discretion in providing for payment of child support orders. Moore v. Moore, 35 N.C. App. 748, 242 S.E.2d 642, 1978 N.C. App. LEXIS 3074 (1978).

Court’s Remedies Have Been Expanded. —

The broad language of this statute suggests that the legislature intended to expand, not limit, the trial court’s remedies in enforcing payment of child support. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478, 1991 N.C. App. LEXIS 577 (1991).

The enforcement provisions under subsection (f) of this section are not mutually exclusive. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478, 1991 N.C. App. LEXIS 577 (1991).

Nor Are the Payment Provisions. —

The methods of payment listed in this section are not mutually exclusive. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

The trial court has broad discretion under subsection (e) of this section in providing for payment of child support. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478, 1991 N.C. App. LEXIS 577 (1991).

Creation of Savings Account for Use of Children. —

In an action for child support, the court was without the power to, in effect, attempt to create a savings account for the use of the children after they reached the age of 18. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878, 1978 N.C. App. LEXIS 2308 (1978).

Trial court erred in directing payment of child support to a custodial account for the child’s benefit because that would result in surplus funds being directed to the child upon emancipation, and instead, the funds should have been directed to the benefit of the minor child no differently than in any other child support award; the error in creating a custodial account was not harmless because the purpose of the statute was to provide support for the child prior to emancipation, not after. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

Receipt of Support May Not Be Conditioned on Visitation. —

A trial judge does not have authority to condition a minor child’s receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Child Support May Not Be Offset by Equitable Distribution Judgment or Other Obligations. —

Defendant was not entitled to a “credit” against his future child support payments for the $12,435.50 he paid over and above his court-ordered obligation or for the $500.00 plaintiff owed him as a result of an equitable distribution judgment; child support obligations may not be offset by other obligations. Brinkley v. Brinkley, 135 N.C. App. 608, 522 S.E.2d 90, 1999 N.C. App. LEXIS 1187 (1999).

Court Had No Authority to Order Payment of Social Security Benefits Directly to Mother. —

A North Carolina district court had no authority to order the Social Security Administration and defendant father, a representative payee receiving Social Security disability payments for the benefit of his children, to pay those benefits directly to plaintiff mother. Brevard v. Brevard, 74 N.C. App. 484, 328 S.E.2d 789, 1985 N.C. App. LEXIS 3510 (1985).

Defendant did not waive his right to support by failing to schedule notice of a hearing on the issue prior to child’s emancipation; trial court was incorrect in its presumption that because the issue of custody had become moot, it could not address the issue of support. Freeman v. Freeman, 103 N.C. App. 801, 407 S.E.2d 262, 1991 N.C. App. LEXIS 929 (1991).

B.Security

Nonresident Defendant May Be Required to Post Bond. —

Under subsection (f)(1) of this section and G.S. 50-16.7(b), the court properly required supporting spouse to post a security bond to secure his compliance with a judgment requiring him to make monthly payments for the support of his wife and children, where the court found that defendant no longer resided within the State and that he had no attorney of record in the case. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607, 1972 N.C. App. LEXIS 2291 (1972).

C.Award of Property

Award of Home. —

The award of the homeplace does not constitute a writ of possession within the meaning of G.S. 50-17 , and the trial judge may award exclusive possession of the homeplace, even though it is owned by the entirety, as a part of the support under this section. Arnold v. Arnold, 30 N.C. App. 683, 228 S.E.2d 48, 1976 N.C. App. LEXIS 2339 (1976); Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979).

The General Assembly has made statutory provisions in subdivision (f)(2) of this section for awarding possession of a home as a part of child support. This is true without regard to whether the parties are divorced. To the extent that the General Assembly’s will, as expressed in this section, conflicts with the common-law principle that the husband is entitled to exclusive possession of entirety property, the common law has been abrogated and supplanted. Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, 1978 N.C. App. LEXIS 3045 , cert. denied, 295 N.C. 261 , 245 S.E.2d 778, 1978 N.C. LEXIS 999 (1978).

Award of Personal Property Does Not Require Valuation Of Property. —

Because the statute requiring valuation of real property transferred for payment of child support arrearages does not require the trial court to determine the value of personal property applied towards child support arrearages, the father did not offer any support for his contention that such a transfer of personal property was analogous to a transfer of real property, and the father consented to transfer the vehicle to the mother, the trial court did not err by transferring the vehicle to the mother without making a specific finding as to its value. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691, 2014 N.C. App. LEXIS 232 (2014).

D.Attachment and Garnishment

For case upholding garnishment of father’s income from alleged “spendthrift” trust created in another jurisdiction and administered by a trustee bank in this State to satisfy judgment of mother against father for alimony, child support and counsel fees, see Swink v. Swink, 6 N.C. App. 161, 169 S.E.2d 539, 1969 N.C. App. LEXIS 1156 (1969).

It was not error for trial court to enter order to withhold plaintiff’s wages to collect child support arrearages that had been reduced to judgment. Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478, 1991 N.C. App. LEXIS 577 (1991).

E.Recovery of Past Due Payments

The sole limitation on a party’s right to reimbursement for documented past support expenditures is imposed by G.S. 1-52(2) , which limits recovery to those expenditures incurred within three years before the date the action for support is filed. Freeman v. Freeman, 103 N.C. App. 801, 407 S.E.2d 262, 1991 N.C. App. LEXIS 929 (1991).

Effect of Subdivision (f)(8). —

The portion of subdivision (f)(8) of this section following the semicolon does not constitute an election of remedies. Nor it is true that once arrearages are reduced to judgment the party attempting to collect the judgment is limited to the execution procedures provided by G.S. 1-302 . Griffin v. Griffin, 103 N.C. App. 65, 404 S.E.2d 478, 1991 N.C. App. LEXIS 577 (1991).

Reduction to Judgment. —

A parent having custody of a minor child may institute an action for the support of such child, and once an order for support has been obtained, the past due payments may be reduced to judgment by motion in the cause. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Arrearages Judgment Reduced Past Due Payments Judgment and Included Periodic Payments Provision. —

As the arrearages judgment reduced the past due payments to a judgment and included a periodic payments provision, it complied with the statute allowing for this particular type of remedy for the enforcement of child support obligations, and the judgment, including its provision concerning period payments towards arrearages was not void and should not have been set aside. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621, 2013 N.C. App. LEXIS 1215 (2013).

After Child Reaches Majority. —

The fact that a child becomes 18 years of age does not prevent the parent having custody from having the past due payments which accrued while the child was a minor reduced to judgment. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Notice. —

The defendant in an action for unpaid child support could not complain of inadequate notice of the plaintiff’s motion to reduce to judgment support payments alleged to be in arrears where the defendant’s attorney of record was properly served with notice. Griffith v. Griffith, 38 N.C. App. 25, 247 S.E.2d 30, 1978 N.C. App. LEXIS 2076 , cert. denied, 296 N.C. 106 , 249 S.E.2d 804, 1978 N.C. LEXIS 1167 (1978).

Authority of Judge. —

Arrearages judgment was a new judgment entered after the mother initiated an action seeking an amount owed from a prior judgment, and when entering this judgment, the judge had both jurisdiction and the statutory authority to reduce the arrearages to a judgment and to make provisions for period payments towards the arrearages; thus, the judgment was not void and could not be set aside. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621, 2013 N.C. App. LEXIS 1215 (2013).

Court cannot agree with the conclusion that the statute is vague and did not authorize periodic payments towards the father’s child support arrearages. Duplin County DSS v. Frazier, 230 N.C. App. 480, 751 S.E.2d 621, 2013 N.C. App. LEXIS 1215 (2013).

F.Retroactive Support and Reimbursement

Retroactive Distinguished from Prospective. —

Child support awarded prior to the time a party files a complaint is properly classified as retroactive child support and is determined by considering reasonably necessary expenditures made on behalf of the child by the party seeking retroactive child support and the defendant’s ability to pay during the period in the past for which reimbursement is sought; child support awarded from the time a party files a complaint for child support to the date of trial is not “retroactive child support,” but is in the nature of prospective child support representing that period from the time a complaint seeking child support is filed to the date of trial. Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442, 1995 N.C. App. LEXIS 231 (1995), rev'd, 343 N.C. 50 , 468 S.E.2d 33, 1996 N.C. LEXIS 157 (1996).

Although prospective child support based upon the presumptive guidelines requires no factual findings regarding the child’s reasonable needs or the supporting parent’s ability to pay, the trial court must set out specific findings of fact in a reimbursement award for retroactive support. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577, 2000 N.C. App. LEXIS 13 (2000).

Trial court’s award of child support was not retroactive in nature because prior consent order was not intended as a final determination on the issue of child support; thus, under G.S. 50-13.4(c), the trial court properly followed the guidelines in awarding prospective child support. Cole v. Cole, 149 N.C. App. 427, 562 S.E.2d 11, 2002 N.C. App. LEXIS 194 (2002).

Claim for Retroactive Child Support. —

Not only may an action be brought to collect child support payments in arrears, but a claim for retroactive child support may be brought under this section. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

Retroactive child support is based solely on amount actually expended for support of minor children during time period in question. Cohen v. Cohen, 100 N.C. App. 334, 396 S.E.2d 344, 1990 N.C. App. LEXIS 984 (1990).

“Emergency Situation” Must Be Shown. —

Child support reimbursement, or child support governing a period prior to a motion to increase an existing child support order, would constitute retroactive child support and would not be based on the presumptive guidelines. Therefore, a child support payment order may not be retroactively increased without evidence of some emergency situation that required the expenditure of sums in excess of the amount of child support paid. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577, 2000 N.C. App. LEXIS 13 (2000).

Reasonable Necessity and Ability to Pay Must Be Considered. —

When a trial court is faced with calculating a retroactive child support award, it must consider, among other things, whether what was actually expended was “reasonably necessary” for the child’s support and the defendant’s ability to pay during the time for which reimbursement is sought. Buff v. Carter, 76 N.C. App. 145, 331 S.E.2d 705, 1985 N.C. App. LEXIS 3821 (1985).

Retroactive Support for Private Schooling Denied. —

Award of additional retroactive child support for private schooling was denied where the trial court’s limited findings failed to set forth the existence of a “sudden emergency” so unusual or extraordinary as to require plaintiff to expend sums in excess of defendant’s existing support obligation, and the court’s order contained no findings reflective of defendant’s ability to pay during the period the emergency expenses were allegedly incurred. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577, 2000 N.C. App. LEXIS 13 (2000).

Measure of Liability for Reimbursement of Support Funds Expended. —

Where there was no evidence or finding as to the actual amount expended by plaintiff for the support of the children for which she was entitled to reimbursement from defendant, what the defendant “should have paid” was not the measure of his liability to plaintiff. The measure of defendant’s liability to plaintiff was the amount actually expended by plaintiff which represented the defendant’s share of support. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307 (1977). In accord with the main volume. See Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179, 1989 N.C. App. LEXIS 622 (1989).

No Reimbursement for Share of Support Paid by Court Order. —

In an action by a mother for child support, mother was not entitled to be reimbursed for sums expended by her for the support of the children which represented her share of support as determined by the trial judge, considering the relative ability of the parties to provide support. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307, 1977 N.C. App. LEXIS 1594 (1977).

Mother’s Homemaking Services Considered. —

In determining father’s share of the reasonable actual expenditures made by mother during the period for which retroactive child support is sought, the trial court must consider her child care and homemaking services rendered during this period. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176, 1992 N.C. App. LEXIS 661 (1992).

Mother Not Entitled to Compensation for Support by Others. —

In an action by a mother for child support, she was not entitled to be compensated for support for the children which was provided by others. Hicks v. Hicks, 34 N.C. App. 128, 237 S.E.2d 307, 1977 N.C. App. LEXIS 1594 (1977).

Extent of Recovery for Past Expenditures. —

Assuming adequate proof of the expenditures under subsection (c) of this section, the plaintiff-mother could recover reimbursement for her past support expenditures (1) to the extent she paid the father’s share of such expenditures, and (2) to the extent the expenditures occurred three years or less before August 8, 1986, the date she filed her claim for child support. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, 1989 N.C. App. LEXIS 671 (1989).

Error Where Court Used Guidelines Instead of Actual Expenditures. —

Where, although the trial court made a finding on mother’s actual expenditures during the period for which retroactive support was sought, the court instead based the retroactive support award on the guidelines in effect at the time the expenses were incurred by mother, this was error requiring reversal of the order of retroactive support. Lawrence v. Tise, 107 N.C. App. 140, 419 S.E.2d 176, 1992 N.C. App. LEXIS 661 (1992).

Proof of Actual Expenditures. —

Trial court’s award of retroactive child support had to be reversed and remanded for findings on the mother’s actual expenditures for the children during the relevant time period. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691, 2014 N.C. App. LEXIS 232 (2014).

The trial court was under no obligation to render findings of fact where it did not deviate from the presumptive guidelines, but rather adjusted the guideline amounts to account, prospectively, for the extraordinary expense of private schooling. Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577, 2000 N.C. App. LEXIS 13 (2000).

Where the trial court abused its discretion in calculating plaintiff’s income and in failing to value plaintiff’s estate, and erred in using the “retroactive child support” test for calculating prospective child support, case would be remanded. Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442, 1995 N.C. App. LEXIS 231 (1995), rev'd, 343 N.C. 50 , 468 S.E.2d 33, 1996 N.C. LEXIS 157 (1996).

Evidence Held Sufficient to Support Award. —

Where trial court specifically found that prior to filing action plaintiff expended at least four hundred dollars ($400.00) per month for the support of the parties’ child and that defendant had the capacity to pay one-half of this amount toward the child’s support during this time, the findings were supported by the evidence and were binding on appeal; the trial court correctly awarded plaintiff reimbursement for past child support. Rawls v. Rawls, 94 N.C. App. 670, 381 S.E.2d 179, 1989 N.C. App. LEXIS 622 (1989).

After the father had been found to be in contempt due to his failure to pay child support, the trial court made sufficient findings of fact to support an award of attorney’s fees to the mother under G.S. 50-13.6 , despite the fact that there was no finding that the mother was an interested party with insufficient means to defray the cost of the litigation; under G.S. 50-13.4(c), the children’s ability to pay attorney’s fees was at issue, not the mother’s, and the mother was an interested party under G.S. 50-13.6 , as she provided the financial support in the absence of the husband. Belcher v. Averette, 152 N.C. App. 452, 568 S.E.2d 630, 2002 N.C. App. LEXIS 1069 (2002).

G.Contempt

Editor’s Note. —

Some of the cases cited below were decided under subdivision (f)(9) of this section as it read prior to amendment in 1977. Prior to such amendment, subdivision (f)(9) provided for punishment as for contempt of the “willful disobedience” of an order for the payment of child support.

Agreement of Parties Incorporated in Judgment Is Enforceable by Contempt Proceedings. —

Where, in wife’s action for alimony and child support, the parties agreed to the terms of a judgment providing that husband would make specified monthly support payments, and the judgment entered by the court ordered husband to make the payments which he had agreed to make, husband’s obligation to make the support payments could be enforced by contempt proceedings. Parker v. Parker, 13 N.C. App. 616, 186 S.E.2d 607, 1972 N.C. App. LEXIS 2291 (1972).

Willfulness Is Required Under Subdivision (f)(9). —

The element of willfulness is required for a finding of civil contempt under subdivision (f)(9) of this section and G.S. 5A-21 . Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260 (1981). In accord with the main volume. See Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312, 1988 N.C. App. LEXIS 918 (1988).

Trial court did not err in not holding the father in contempt as he did not intend to willfully violate the child support order because he was under the mistaken apprehension that he could simply stop paying after his son ceased living with the mother. Morris v. Powell, 269 N.C. App. 496, 840 S.E.2d 223, 2020 N.C. App. LEXIS 113 (2020).

Priority of G.S. 50-13.4(f)(8)-(9) over G.S. Ch. 5A. —

Because G.S. 50-13.4(f)(8)-(9) is more specific than the generalized contempt allowances set forth in G.S. ch. 5A, G.S. 50-13.4(f)(8)-(9) must control. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39, 2005 N.C. App. LEXIS 1206 (2005).

And Only Willful Disobedience May Be Punished. —

A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is willful, which imports knowledge and a stubborn resistance. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

To constitute willful disobedience there must be an ability to comply with the court order and a deliberate and intentional failure to do so. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554, 1974 N.C. App. LEXIS 1812 (1974).

One does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

Ability to Pay or to Take Measures to Do So Required. —

Although an order for child support is enforceable by civil contempt proceedings, a supporting party cannot be held in contempt unless the party willfully failed to comply with the support order. A finding of willful failure to comply with the order requires evidence of the present ability to pay or to take reasonable measures to comply. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170, 1985 N.C. App. LEXIS 3695 (1985).

Contempt for Violation Based on Willfulness Upheld. —

Trial court acted correctly when it exercised jurisdiction under this section and found defendant/husband in civil contempt, where he made a calculated and deliberate decision to pay a lower amount of child support than it had previously ordered. Burnett v. Wheeler, 133 N.C. App. 316, 515 S.E.2d 480, 1999 N.C. App. LEXIS 411 (1999).

Trial Court Must Make Particular Findings of Ability to Pay. —

In order to hold a parent in contempt for failure to pay child support in accordance with a decree, the failure must be willful. In order to find the failure willful, there must be particular findings of the ability to pay during the period of delinquency. Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178, 1977 N.C. App. LEXIS 1858 (1977).

In order to punish by contempt proceedings, the trial court must find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

There must be a specific finding of fact, supported by competent evidence, to the effect that defendant possesses the means to comply with the court order, before he can be incarcerated for contempt until compliance. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554, 1974 N.C. App. LEXIS 1812 (1974); Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d 734, 1975 N.C. App. LEXIS 2115 , cert. denied, 288 N.C. 240 , 217 S.E.2d 679, 1975 N.C. LEXIS 907 (1975).

A defendant may not deliberately divest himself of his property and in effect pauperize himself for appearance at a hearing for contempt and thereby escape punishment because he is at that time unable to comply with the court order. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554, 1974 N.C. App. LEXIS 1812 (1974).

Defendant’s voluntary purging of assets in bankruptcy was considered a deliberate divestment of assets; therefore, failure to comply with a child support order was willful and punishable by contempt proceedings. Harris v. Harris, 91 N.C. App. 699, 373 S.E.2d 312, 1988 N.C. App. LEXIS 918 (1988).

Past contempt cannot be ignored by the court even if at the exact time of the contempt hearing the defendant does not have the means to comply with the order for child support. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554, 1974 N.C. App. LEXIS 1812 (1974).

Contempt Decree Set Aside for Lack of Findings. —

Where the lower court had not found as a fact that defendant possessed the means to comply with the orders for payment of subsistence pendente lite at any time during the period when he was in default in such payments, the findings that defendant’s failure to make the payments of subsistence was deliberate and willful was not supported by the record, and the decree committing him to imprisonment for contempt would be set aside. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

Child Support Arrears. —

Although defendant’s child support obligation terminated because her son turned 18 and was no longer in school, the arrears owed to the county remained in force, as defendant made no child support payments before her son turned 18 and the court found the purpose of the order would be served by her compliance; her challenge to be held in civil contempt failed. Cumberland Cty. ex rel. Mitchell v. Manning, 262 N.C. App. 383, 822 S.E.2d 305, 2018 N.C. App. LEXIS 1130 (2018).

When order reducing child support arrears to a money judgment does not provide for periodic payments although the lower court’s prior judgment reduced the father’s child support arrearage to a money judgment, it did not provide for periodic payments so his failure to satisfy the arrearage was enforceable by execution under G.S. 1-302 , and not civil contempt under G.S. 50-13.4(f)(8)-(9), so the lower court’s judgment holding him in contempt was beyond its jurisdiction and was vacated. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39, 2005 N.C. App. LEXIS 1206 (2005).

When order reducing child support arrears to a money judgment does not provide for periodic payments or other deadline for payment, it is not enforceable by contempt, and the trial court does not have jurisdiction to enter an order finding a defendant in contempt. Brown v. Brown, 171 N.C. App. 358, 615 S.E.2d 39, 2005 N.C. App. LEXIS 1206 (2005).

Failure to Pay College Expenses. —

Trial court properly found father in civil contempt where he willfully failed to pay his daughters college expenses as he had contracted to do. Ross v. Voiers, 127 N.C. App. 415, 490 S.E.2d 244, 1997 N.C. App. LEXIS 890 (1997).

Defendant Not in Contempt. —

Defendant was not in civil contempt of court in deducting from child support payments made to plaintiff amounts representing voluntary expenditures for needs of the parties’ children while they were visiting him. Jones v. Jones, 52 N.C. App. 104, 278 S.E.2d 260, 1981 N.C. App. LEXIS 2315 (1981).

Review of Facts Found in Contempt Proceedings. —

In proceedings for contempt, the facts found by the judge are not reviewable, except for the purpose of passing upon their sufficiency to warrant the judgment. Cox v. Cox, 10 N.C. App. 476, 179 S.E.2d 194, 1971 N.C. App. LEXIS 1653 (1971).

Payment of Counsel Fees. —

The court is vested with broad power when it is authorized to punish “as for contempt.” This power includes the authority for a district court judge to require one whom he has found in willful contempt of court for failure to comply with a child support order to pay reasonable counsel fees to opposing counsel as a condition to being purged of contempt. Blair v. Blair, 8 N.C. App. 61, 173 S.E.2d 513, 1970 N.C. App. LEXIS 1482 (1970).

Attorney Fees Included In Child Support Award. —

Trial court had subject matter jurisdiction to enforce attorney fee awards included in a child support award during the pendency of defendant’s appeal of a child support award pursuant to G.S. 50-13.4(f)(9). Moreover, where defendant made no attempt to post an undertaking or supersedeas bond to stay civil contempt proceedings on the attorney fee awards pursuant to G.S. 1-289 , defendant was subject to civil contempt proceedings pending his appeal. Simms v. Bolger, 264 N.C. App. 456, 826 S.E.2d 467, 2019 N.C. App. LEXIS 270 (2019).

Indefinite Jail Term. —

When a defendant has the present means to comply with a court order and deliberately refuses to comply, there is a present and continuing contempt, and the court may commit such defendant to jail for an indefinite term, that is, until he complies with the order. Bennett v. Bennett, 21 N.C. App. 390, 204 S.E.2d 554, 1974 N.C. App. LEXIS 1812 (1974); Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d 734, 1975 N.C. App. LEXIS 2115 , cert. denied, 288 N.C. 240 , 217 S.E.2d 679, 1975 N.C. LEXIS 907 (1975).

Effect of Dismissal of Contempt Action Without Explanation. —

A dismissal of a contempt action, without explanation, at most signified that the supporting party was not in contempt as of that date and did not cancel the accrued child support debt; it merely forced the custodial parent or an authorized party to pursue one of the alternate remedies listed in subsection (f) to enforce the debt. Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170, 1985 N.C. App. LEXIS 3695 (1985).

As to effect of reconciliation and resumption of cohabitation on a separation agreement, see Hand v. Hand, 46 N.C. App. 82, 264 S.E.2d 597, 1980 N.C. App. LEXIS 2758 (1980).

Failure to Identify Purpose of Support as Health, Education and Maintenance Is Not Error. —

The better practice is for the court’s order to relate that the payment ordered under this section is the amount necessary to meet the reasonable needs of the child for health, education, and maintenance, but the failure of the court to do so does not constitute reversible error. Andrews v. Andrews, 12 N.C. App. 410, 183 S.E.2d 843, 1971 N.C. App. LEXIS 1378 (1971); Martin v. Martin, 35 N.C. App. 610, 242 S.E.2d 393, 1978 N.C. App. LEXIS 3045 , cert. denied, 295 N.C. 261 , 245 S.E.2d 778, 1978 N.C. LEXIS 999 (1978).

Appeal Did Not Divest Trial Court of Enforcement Jurisdiction. —

Notice of appeal from a trial court order requiring a husband to make payments pursuant to a child support order did not divest the trial court of jurisdiction to make an enforcement order finding the husband in contempt based on the exception to the divestment of the trial court’s jurisdiction found in G.S.50-13.4(f)(9). Guerrier v. Guerrier, 155 N.C. App. 154, 574 S.E.2d 69, 2002 N.C. App. LEXIS 1638 (2002).

OPINIONS OF ATTORNEY GENERAL

Medical Child Support Enforcement Provisions. — The medical child support enforcement provisions of House Bill 1563, 1993 (Reg. Sess., 1994), N.C. Session Laws c. 644, are inapplicable to the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan (now State Health Plan for Teachers and State Employees) and the governmental entities whose employees and retirees, along with their dependents, are eligible for coverage under the Plan or its HMO option. Medical child support orders nonetheless may be enforced directly against State employees and retirees who fail to enroll, or maintain coverage for, their eligible dependent children under the State Health Plan in accordance with the provisions of G.S. 50-13.9 , 50-13.11 and subsection (f) of this section. See opinion of Attorney General to Patricia Crawford, Associate General Counsel, University of North Carolina at Chapel Hill, — N.C.A.G. — (August 10, 1995).

I.In General

Editor’s Note. —

A number of the cases cited below were decided under former G.S. 50-13 , which dealt with custody and maintenance of children in actions for divorce, former G.S. 50-16 , which dealt with custody and support of children in proceedings for alimony without divorce, and former G.S. 17-39 and former G.S. 17-39 .1, which dealt with habeas corpus for custody of children.

Legislature apparently intended to provide the maximum range of choice among procedures for determination of child custody and support. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721, 1985 N.C. App. LEXIS 3559 (1985).

Remarriage Does Not Reduce Choice of Procedures. —

The statutory scheme of this section provides for an election of procedures in actions for custody or support; there is no reason why the remarriage of the parties should reduce the choices available. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721, 1985 N.C. App. LEXIS 3559 (1985).

Effect of Defendant’s Petition for Custody on Plaintiff’s Right to Voluntary Nonsuit. —

Where wife instituted action for divorce and husband filed his petition in the cause praying the court for a determination of his custodial rights with respect to the child, thus seeking affirmative relief of a substantial nature, it was not within the power of the clerk to divest the court of its jurisdiction by allowing wife to submit to a voluntary nonsuit during the course of the hearings and while the issue of custody was in fieri before the presiding judge. Cox v. Cox, 246 N.C. 528 , 98 S.E.2d 879, 1957 N.C. LEXIS 473 (1957).

Ex Parte Order Improper. —

Judge was censured for misconduct under circumstances in which the judge entered an ex parte order striking an earlier order that had been entered by a different district court judge, which had found a party in contempt for failure to pay child support, regardless of the judge’s claim that his actions were allowed by G.S. 50-13.5 . In re Royster, 361 N.C. 560 , 648 S.E.2d 837, 2007 N.C. LEXIS 809 (2007).

Change in Circumstances. —

Where parent was found to be a fit and proper parent, and in a later order found to be an unfit parent, the finding of unfitness constituted a change in circumstances. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

Burden of Proof. —

Even if privity was not a requirement of collateral estoppel, the trial court erroneously applied the doctrine because of the different burdens of proof used in custody and neglect hearings, and the trial court erred in applying the doctrine to bar the mother’s questions, as the neglect hearing was held pursuant to a different burden of proof; the error made it impossible for the mother to effectively contest the allegations made in the petition under the higher, clear and convincing evidence standard, and the matter was reversed. In re K.A., 233 N.C. App. 119, 756 S.E.2d 837, 2014 N.C. App. LEXIS 314 (2014).

II.Type of Action

Editor’s Note. —

Most of the cases cited below were decided prior to the enactment of G.S. 50-19 , authorizing the maintenance of certain actions as independent actions.

Justice to all parties is best served when one judge is able to see the controversy whole. In re King, 3 N.C. App. 466, 165 S.E.2d 60, 1969 N.C. App. LEXIS 1602 (1969).

Joinder in Action for Alimony Without Divorce Is Permissible. —

It is permissible under subdivision (b)(3) of this section for the wife (spouse) to join an action for custody and support of the minor children of the parties in her action for alimony without divorce. Little v. Little, 9 N.C. App. 361, 176 S.E.2d 521, 1970 N.C. App. LEXIS 1359 (1970).

As an Additional Method of Determining Issues as to Children. —

The 1953 amendment of former G.S. 50-16 , granting jurisdiction to determine custody in an action for alimony without divorce, created an additional method whereby the matter of custody may be determined. Blankenship v. Blankenship, 256 N.C. 638 , 124 S.E.2d 857, 1962 N.C. LEXIS 523 (1962).

The 1955 amendment to former G.S. 50-16 , which provided that custody orders were authorized “in the same manner as such orders are entered by the court in an action for divorce,” bolstered the decision in Blankenship v. Blankenship, 256 N.C. 638 , 124 S.E.2d 857 (1962), which held that that section created an additional method whereby all questions relating to custody and child support were brought into and determined in the suit for alimony without divorce, in one action. In re Sauls, 270 N.C. 180 , 154 S.E.2d 327, 1967 N.C. LEXIS 1322 (1967).

Prior to 1953, custody of children could not be determined in a proceeding for alimony without divorce. Murphy v. Murphy, 261 N.C. 95 , 134 S.E.2d 148, 1964 N.C. LEXIS 421 (1964).

Counterclaims. —

There is no conflict between the statutes dealing with procedure in divorce actions and G.S. 1A-1 , Rule 13(a). Rather G.S. 1A-1 , Rule 13(a) superimposes an additional characteristic on certain kinds of counterclaims. Gardner v. Gardner, 294 N.C. 172 , 240 S.E.2d 399, 1978 N.C. LEXIS 1194 (1978). But see now G.S. 50-19 .

Divorce action is pending for purposes of determining custody and support until the death of one of the parties or until the youngest child born of the marriage reaches maturity, whichever event occurs first. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721, 1985 N.C. App. LEXIS 3559 (1985).

Remedy of Plaintiff in Divorce Suit Is by Motion in the Cause. —

Where a wife institutes suit for divorce, her remedy to require the defendant to provide support for a minor child of the marriage is by motion in the cause, which may be filed either before or after final judgment. Winfield v. Winfield, 228 N.C. 256 , 45 S.E.2d 259, 1947 N.C. LEXIS 600 (1947).

Plaintiff-husband, as a parent seeking custody, could seek to have his child support obligation determined through a motion in the cause in the divorce action. He was not precluded from doing so by the fact that the court had not previously entered orders in that action relating to child support. Bottomley v. Bottomley, 82 N.C. App. 231, 346 S.E.2d 317, 1986 N.C. App. LEXIS 2437 (1986).

Modification of Order on Motion of Court or Party. —

Upon motion of a party, or upon its own motion after due notice, the court may conduct a hearing to determine whether the decree should be modified. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

Foster Parents May Not Bring Custody Action. —

Nothing in the language of G.S. 48-9.1(1) gives foster parents standing to contest the department’s or agency’s exercise of its rights as legal custodian; therefore, foster parents are without standing to bring an action seeking custody of minor child placed in their home by defendant. Oxendine v. Catawba County Dep't of Social Servs., 303 N.C. 699 , 281 S.E.2d 370, 1981 N.C. LEXIS 1267 (1981); In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Intervention by Foster Parents. —

In proceeding brought by DSS in which custody was put in issue by guardian ad litem and natural father, trial court did not err in permitting child’s foster parents to intervene. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986) (distinguishing) Oxendine v. Department of Social Servs., 303 N.C. 699 , 281 S.E.2d 370 (1981) (and upholding award of custody to foster parents) .

Guardianship Versus Custody. —

When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt’s subsequent guardianship petition made the custody action moot because, (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk’s jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts’ custody awards, so the clerk had jurisdiction to appoint the children’s general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564, 2016 N.C. App. LEXIS 1315 (2016).

III.Jurisdiction and Venue

A.In General

Editor’s Note. —

Most of the cases cited below were decided prior to the enactment of G.S. 50-19 , authorizing the maintenance of certain actions as independent actions, and prior to the enactment of the Uniform Child Custody Jurisdiction Act, former G.S. 50A-1 et seq., or the Uniform Child-Custody Jurisdiction and Enforcement Act, G.S. 50A-101 et seq.

Venue Provision. —

Subdivision (f) of this section, enacted in 1967, is the venue provision for a child support action. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

The jurisdiction of the court to protect infants is broad, comprehensive, and plenary. Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974).

Action to Determine Support Is in Personam. —

Under subdivision (c)(1) of this section an action to determine the matter of support is in personam in nature. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972).

An action for child support is an action in personam and is governed by jurisdictional rules as in actions for the payment of money or the transfer of property. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

While Award of Custody Is in Rem. —

The awarding of the custody of the children in an action for divorce is in rem. Coble v. Coble, 229 N.C. 81 , 47 S.E.2d 798, 1948 N.C. LEXIS 429 (1948); Hoskins v. Currin, 242 N.C. 432 , 88 S.E.2d 228, 1955 N.C. LEXIS 605 (1955).

Divorce Action Gives Court Jurisdiction of Custody. —

In divorce actions, whether for the dissolution of the marriage or from bed and board, the court in which the action is brought acquires jurisdiction over the custody of the unemancipated children of the parties. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965).

When Jurisdiction Is Obtained Over Defendant. —

Upon the institution of a divorce action, the court is vested with jurisdiction of the children of the marriage for the purpose of entering orders respecting their care and custody. But the action is not instituted, within the meaning of this rule, until and unless the court acquires jurisdiction of the person of the defendant, and jurisdiction is subject to the fundamental requirement of notice and opportunity to be heard. If both parents are in court and subject to its jurisdiction, an order may be entered, in proper instances, binding the parties and enforceable through the court’s coercive jurisdiction. Coble v. Coble, 229 N.C. 81 , 47 S.E.2d 798, 1948 N.C. LEXIS 429 (1948).

And Consent Judgment Therein Does Not Divest Court of Jurisdiction as to Custody of Child. —

Upon the institution of an action for divorce from bed and board, the court acquires jurisdiction of the minor children of the parties, which is not divested by a consent judgment on the issue of divorce entered in the cause with approval of the court, especially where such consent judgment expressly provides that either party may thereafter make a motion in the cause for the custody of the children, the court having the power in an action for divorce, either absolute or from bed and board, before or after final judgment, to enter orders respecting the care and custody of the children under this section. Tyner v. Tyner, 206 N.C. 776 , 175 S.E. 144, 1934 N.C. LEXIS 309 (1934).

Where consent judgment in a suit a mensa et thoro has been entered in the action, without providing for the children, upon motion in the original cause the court has the power to make such further orders as it deems proper requiring the father (or mother) to provide for the support of his children, whether born before or after the rendition of the consent judgment. Sanders v. Sanders, 167 N.C. 317 , 83 S.E. 489, 1914 N.C. LEXIS 112 (1914).

Actions Constituting General Appearance Subject Defendant to Jurisdiction. —

By submitting information to the court relevant to the merits in action for child custody and support, defendant made a general appearance prior to his assertions of lack of personal jurisdiction where defendant sought affirmative relief from the court; submission of the documents was inconsistent with defendant’s later claim of lack of personal jurisdiction. Bullard v. Bader, 117 N.C. App. 299, 450 S.E.2d 757, 1994 N.C. App. LEXIS 1222 (1994).

Remarriage of parties to each other does not divest court of its continuing jurisdiction over the minor child acquired in action for divorce. Latham v. Latham, 74 N.C. App. 722, 329 S.E.2d 721, 1985 N.C. App. LEXIS 3559 (1985).

Previous Action Pending. —

Husband’s motion as to child custody and child support was properly dismissed where the wife’s previously commenced action with respect to the custody and support of the children was pending at the time the husband filed his motion. Basinger v. Basinger, 80 N.C. App. 554, 342 S.E.2d 549, 1986 N.C. App. LEXIS 2218 (1986).

Child Becomes Ward of Court. —

In a custody case, the court acquires jurisdiction of the child as well as the parent, and the child thus becomes a ward of the court. Joyner v. Joyner, 256 N.C. 588 , 124 S.E.2d 724, 1962 N.C. LEXIS 510 (1962).

Presence of Child. —

For cases as to the effect of the child’s presence in this State on the issue of jurisdiction, prior to the enactment of G.S. 50A-1 et seq., see Coble v. Coble, 229 N.C. 81 , 47 S.E.2d 798, 1948 N.C. LEXIS 429 (1948); Allman v. Register, 233 N.C. 531 , 64 S.E.2d 861, 1951 N.C. LEXIS 346 (1951); Hoskins v. Currin, 242 N.C. 432 , 88 S.E.2d 228, 1955 N.C. LEXIS 605 (1955); Weddington v. Weddington, 243 N.C. 702 , 92 S.E.2d 71, 1956 N.C. LEXIS 613 (1956); Kovacs v. Brewer, 245 N.C. 630 , 97 S.E.2d 96, 1957 N.C. LEXIS 625 (1957), vacated, 356 U.S. 604, 78 S. Ct. 963, 2 L. Ed. 2d 1008, 1958 U.S. LEXIS 996 (1958); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140, 1969 N.C. App. LEXIS 1194 (1969); Pruneau v. Sanders, 25 N.C. App. 510, 214 S.E.2d 288, 1975 N.C. App. LEXIS 2312 , cert. denied, 287 N.C. 664 , 216 S.E.2d 911, 1975 N.C. LEXIS 1175 (1975); Hopkins v. Hopkins, 8 N.C. App. 162, 174 S.E.2d 103, 1970 N.C. App. LEXIS 1511 (1970); Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972); Spence v. Durham, 16 N.C. App. 372, 191 S.E.2d 908, 1972 N.C. App. LEXIS 1708 (1972), rev'd, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973); Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974); Taylor v. Taylor, 20 N.C. App. 188, 201 S.E.2d 43, 1973 N.C. App. LEXIS 1509 (1973); MacKenzie v. MacKenzie, 21 N.C. App. 403, 204 S.E.2d 561, 1974 N.C. App. LEXIS 1816 (1974); Swanson v. Swanson, 22 N.C. App. 152, 205 S.E.2d 738, 1974 N.C. App. LEXIS 2263 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513, 1975 N.C. App. LEXIS 2427 (1975); Searl v. Searl, 34 N.C. App. 583, 239 S.E.2d 305, 1977 N.C. App. LEXIS 1774 (1977); Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819, 1978 N.C. App. LEXIS 2800 (1978); King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616, 1979 N.C. App. LEXIS 2335 (1979).

In a grandmother’s action seeking custody of her grandchildren, the trial court erred in changing venue because either the county where the complaint alleged that the children resided or the county where they were physically present could have proper venue; basing venue on the physical presence of the children would seem entirely appropriate, particularly where a grandparent is seeking to protect grandchildren whose parents have disappeared. Zetino-Cruz v. Benitez-Zetino, 249 N.C. App. 218, 791 S.E.2d 100, 2016 N.C. App. LEXIS 868 (2016).

Jurisdiction Vests Exclusively in Divorce Court. —

The court in which a suit for divorce is pending has exclusive jurisdiction as to the care or custody of the children of the marriage, before and after the decree of divorce has been entered. In re Blake, 184 N.C. 278 , 114 S.E. 294, 1922 N.C. LEXIS 74 (1922); Murphy v. Murphy, 261 N.C. 95 , 134 S.E.2d 148, 1964 N.C. LEXIS 421 (1964).

When a divorce action is instituted, jurisdiction over the custody of the children born of the marriage vests exclusively in the court before whom the divorce action is pending and becomes a concomitant part of the subject matter of the court’s jurisdiction in the divorce action. Cox v. Cox, 246 N.C. 528 , 98 S.E.2d 879, 1957 N.C. LEXIS 473 (1957); In re Sauls, 270 N.C. 180 , 154 S.E.2d 327, 1967 N.C. LEXIS 1322 (1967).

Jurisdiction over the custody of the children born of the marriage rests exclusively in the court before whom the divorce action is pending, and no order for the custody of the children may be entered in a later action by one of the parties for subsistence without divorce. Reece v. Reece, 231 N.C. 321 , 56 S.E.2d 641, 1949 N.C. LEXIS 522 (1949).

Where plaintiff instituted his action for divorce from bed and board in the superior court, and specifically prayed “that the court determine the proper custody for the aforesaid minor child of the plaintiff and defendant,” that court became vested in his suit with exclusive jurisdiction to enter orders respecting the care, custody and maintenance of the child. Bunn v. Bunn, 258 N.C. 445 , 128 S.E.2d 792, 1963 N.C. LEXIS 417 (1963).

Jurisdiction of the matters relating to custody having been invoked in an action for divorce, the court in which the divorce action was pending would have exclusive jurisdiction over the question of custody. Blankenship v. Blankenship, 256 N.C. 638 , 124 S.E.2d 857, 1962 N.C. LEXIS 523 (1962).

Jurisdiction Continues After Entry of Decree. —

The court in which the suit for divorce is pending has exclusive jurisdiction of proceedings for custody and child support, and once they are commenced, maintains it after the divorce decree is entered. Bass v. Bass, 43 N.C. App. 212, 258 S.E.2d 391, 1979 N.C. App. LEXIS 3040 (1979).

Jurisdiction of courts in custody and visitation cases is continuous. A decree determines only the present rights with respect to such custody and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the child. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

The jurisdiction of the court over the custody of unemancipated children of the parties in a divorce action continues even after divorce. Stanback v. Stanback, 266 N.C. 72 , 145 S.E.2d 332, 1965 N.C. LEXIS 1391 (1965).

Once jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Where Custody and Support Have Been Brought to Issue. —

Where custody and support are brought to issue by the pleadings, the court retains continuing jurisdiction over these matters even when the issues are not determined by the judgment. Thus, where the issues of custody and support were raised in plaintiff wife’s complaint and ruled on by the trial judge, the court retained jurisdiction to entertain and rule on defendant husband’s motion in the cause for custody and support of the children. Jackson v. Jackson, 68 N.C. App. 499, 315 S.E.2d 90, 1984 N.C. App. LEXIS 3314 (1984).

Until Death of a Party or Children’s Attainment of Age of Majority. —

A divorce action is pending for purposes of determining custody and support until the death of one of the parties or until the youngest child born of the marriage reaches the age of majority, whichever event shall first occur. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972); Morris v. Morris, 42 N.C. App. 222, 256 S.E.2d 302, 1979 N.C. App. LEXIS 2801 (1979).

But Custody Jurisdiction of Court Where Action for Alimony Without Divorce Is Pending Is Not Lost. —

The general rule that exclusive custody jurisdiction is vested in the divorce court is subject to the exception that a court before which an action for alimony without divorce is pending does not lose its custody jurisdiction to the court of another county in which an action for divorce is subsequently filed. In re Sauls, 270 N.C. 180 , 154 S.E.2d 327, 1967 N.C. LEXIS 1322 (1967).

Institution of a divorce action did not oust the jurisdiction of another court, previously acquired in an action for alimony without divorce, to determine the rights of custody of the children of the marriage. Blankenship v. Blankenship, 256 N.C. 638 , 124 S.E.2d 857, 1962 N.C. LEXIS 523 (1962).

Divorce Court May Hear and Determine Questions of Custody and Support. —

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. Story v. Story, 221 N.C. 114 , 19 S.E.2d 136, 1942 N.C. LEXIS 403 (1942).

After the filing of a complaint in any action for divorce, whether from the bonds of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper. Coggins v. Coggins, 260 N.C. 765 , 133 S.E.2d 700, 1963 N.C. LEXIS 814 (1963).

And May Grant Custody to Either Parent. —

The court has jurisdiction to enter an order granting custody to either of the children’s parents, both of whom are subject to the court’s jurisdiction. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972).

Even Though Such Questions Were Not Raised or Determined in Final Judgment. —

A court in which a divorce action was tried has jurisdiction to determine custody and support of children of the marriage, even though no custody or support questions were raised prior to, or determined in, the final judgment of divorce. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972).

Issue of Custody and Support Remains in Fieri. —

If the custody and support has been brought to issue or determined in the previously instituted action between the parents, there could be no final judgment in that case, because the issue of custody and support remains in fieri until the children have become emancipated. Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190, 1971 N.C. App. LEXIS 1536 (1971); Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E.2d 215, 1976 N.C. App. LEXIS 2493 (1976); Bass v. Bass, 43 N.C. App. 212, 258 S.E.2d 391, 1979 N.C. App. LEXIS 3040 (1979).

Jurisdiction to Modify Custody Decree. —

Once a court in this State properly asserts jurisdiction to determine the rights of the parties to custody of a minor child, that court retains jurisdiction to modify its custody decree upon a showing of a substantial change of circumstances. Lynch v. Lynch, 303 N.C. 367 , 279 S.E.2d 840, 1981 N.C. LEXIS 1196 (1981).

Subsection (f) of this section does not affect the situation where custody and support have already been determined and one of the parties seeks a modification. In such a case, the court first obtaining jurisdiction retains jurisdiction to the exclusion of all other courts and is the only proper court in which to bring an action for the modification of an order establishing custody and support. Tate v. Tate, 9 N.C. App. 681, 177 S.E.2d 455, 1970 N.C. App. LEXIS 1437 (1970).

A party cannot seek modification of a child support order in a court other than that in which it was entered where there has been no change of venue by the court. Broyhill v. Broyhill, 81 N.C. App. 147, 343 S.E.2d 605, 1986 N.C. App. LEXIS 2285 (1986).

Uniform Interstate Family Support Act. —

Where a North Carolina judgment of absolute divorce made no provision for child support, and there was thus no existing order, the Texas Attorney General’s petition to establish a support obligation was properly classified as a petition to establish an order of support rather than a petition to modify an order of no support; thus, under the Uniform Interstate Family Support Act, the Texas trial court had the authority to adjudicate the father’s child support obligation, and because the North Carolina tribunal had not acquired continuing, exclusive jurisdiction, the trial court erred in granting the father’s plea to the jurisdiction. Office of the AG of Tex. v. Long, 401 S.W.3d 911, 2013 Tex. App. LEXIS 6206 (Tex. App. Houston 14th Dist. 2013).

Independent Action in Another Court Where Custody and Support Not Determined — After Final Judgment. —

The first proviso of subsection (f) of this section, when read in conjunction with the first sentence of subsection (f) and in conjunction with subsection (b), makes it clear that after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined, the custody and support issue may be determined in an independent action in another court. Kennedy v. Surratt, 29 N.C. App. 404, 224 S.E.2d 215, 1976 N.C. App. LEXIS 2493 (1976).

The custody and support issue may be determined in an independent action in another court after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined. In re Holt, 1 N.C. App. 108, 160 S.E.2d 90, 1968 N.C. App. LEXIS 1018 (1968); Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190, 1971 N.C. App. LEXIS 1536 (1971).

Subsections (b) and (f) of this section, when considered together, permit questions of custody and support to be determined in independent actions, rather than only through a motion in the cause, where a divorce judgment has been entered without a determination of custody and support in that judgment. Johnson v. Johnson, 14 N.C. App. 378, 188 S.E.2d 711, 1972 N.C. App. LEXIS 2135 (1972).

Same — Before Final Judgment. —

When a divorce action has been filed in one county, and there has not been a final judgment in that action, the courts of another county are, by virtue of the first proviso in subsection (f) of this section, without jurisdiction to entertain an independent action for custody of the minor children of the parties. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E.2d 923, 1978 N.C. App. LEXIS 2171 (1978).

Jurisdiction to Award Custody of Child After Denial of Divorce. —

After plaintiff’s suit for divorce from bed and board and defendant’s cross action for alimony without divorce had both been denied, the judge had jurisdiction and power to enter the portion of the judgment awarding custody of the minor son of the parties to defendant and providing for his maintenance and support. Bunn v. Bunn, 258 N.C. 445 , 128 S.E.2d 792, 1963 N.C. LEXIS 417 (1963).

Added Parties May Be Subjected to Jurisdiction to Same Extent as Original Parties. —

In an action to determine custody of a child, an order which was entered in the Court of Appeals making the paternal grandparents parties, pursuant to their motion, subjected them to the jurisdiction of the Court of Appeals and of the trial court to the same extent as if they had been original parties plaintiff. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

Failure to Raise Issue of Venue. —

Because a mother and father, defendants, never appeared or filed an answer, they made no objection to venue and, thus, they waived it. Zetino-Cruz v. Benitez-Zetino, 249 N.C. App. 218, 791 S.E.2d 100, 2016 N.C. App. LEXIS 868 (2016).

Failure to Raise Issue of Child Support. —

Defendant’s mere mentioning of “a Separation Agreement dated June 5, 1981” in his 1982 divorce complaint was insufficient to raise the issue of child support. Defendant’s divorce complaint did not ask the divorce court to review the question of child support and the divorce judgment did not even allude to the parties’ separation agreement; therefore, defendant’s contention that his prior divorce action placed the question of child support at issue with the results that (i) the original divorce court retained jurisdiction over that question and (ii) the present independent action by his wife should have been dismissed under a theory of abatement, was rejected. Powers v. Parisher, 104 N.C. App. 400, 409 S.E.2d 725, 1991 N.C. App. LEXIS 1050 (1991).

Effect of Subsequent Divorce in Another State. —

Where the children of the marriage were residents of this State and the parents were personally before the court, the courts of this State had jurisdiction in the wife’s action for subsistence under former G.S. 50-16 to award the custody of the children to the wife and decree the amount defendant should contribute for their support, and to punish defendant as for contempt for willful failure to comply with its order, notwithstanding the fact that the husband obtained a decree of divorce in another state after the entry of the order for support. Whitford v. Whitford, 261 N.C. 353 , 134 S.E.2d 635, 1964 N.C. LEXIS 463 (1964).

Judge Held Without Jurisdiction to Hear Matter Outside District. —

Upon application for the custody of the children of the marriage after decree of divorce, the resident judge entered a temporary order awarding custody to the father, and issued an order to defendant wife to appear outside the county and outside the district to show cause why the temporary order should not be made permanent. It was held that the judge was without jurisdiction to hear the matter outside the district, and an order issued upon the hearing of the order to show cause was void ab initio. Patterson v. Patterson, 230 N.C. 481 , 53 S.E.2d 658, 1949 N.C. LEXIS 375 (1949).

Jurisdiction over Petition Filed by DSS. —

The district court had jurisdiction over the subject matter of petition filed, signed and verified by county division of social services, which alleged that child had been placed with DSS by its mother; that the putative father was unknown; that North Carolina was the home state of the child and no other state had jurisdiction over the child; and that the best interest of the child would be served if the court assumed jurisdiction over him. In re Scearce, 81 N.C. App. 531, 345 S.E.2d 404, 1986 N.C. App. LEXIS 2344 (1986).

Transfer of Venue. —

For the convenience of witnesses and parties and because it may be in the best interests of justice and the parties, the court of original venue may, in its discretion, transfer the venue of an ongoing action for custody or support to a more appropriate county. Broyhill v. Broyhill, 81 N.C. App. 147, 343 S.E.2d 605, 1986 N.C. App. LEXIS 2285 (1986).

Standing to Intervene. —

As a grandmother failed to allege conduct sufficient to support a finding that the parents engaged in conduct inconsistent with their parental rights and responsibilities, she could not overcome the presumption that the parents had the superior right to the care, custody, and control of the child, and lacked standing to intervene. Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145, 2009 N.C. App. LEXIS 210 (2009).

Dismissal Improper. —

Dismissal of a wife’s claims for child support and child custody for lack of subject matter jurisdiction was error as separation or initiation of a claim for divorce from bed and board was not a precondition for maintaining those claims under G.S. 50-13.1 and G.S. 50-13.5 . Baumann-Chacon v. Baumann, 212 N.C. App. 137, 710 S.E.2d 431, 2011 N.C. App. LEXIS 946 (2011).

B.Full Faith and Credit

Generally. —

For cases as to full faith and credit accorded the custody decrees of other states, prior to the enactment of G.S. 50A-1 et seq., see In re Marlowe, 268 N.C. 197 , 150 S.E.2d 204, 1966 N.C. LEXIS 1159 (1966); Rothman v. Rothman, 6 N.C. App. 401, 170 S.E.2d 140, 1969 N.C. App. LEXIS 1194 (1969); In re Kluttz, 7 N.C. App. 383, 172 S.E.2d 95, 1970 N.C. App. LEXIS 1695 (1970); Spence v. Durham, 283 N.C. 671 , 198 S.E.2d 537, 1973 N.C. LEXIS 1060 (1973), cert. denied, 415 U.S. 918, 94 S. Ct. 1417, 39 L. Ed. 2d 473, 1974 U.S. LEXIS 1194 (1974); Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513, 1975 N.C. App. LEXIS 2427 (1975); Johnston v. Johnston, 29 N.C. App. 345, 224 S.E.2d 276, 1976 N.C. App. LEXIS 2473 (1976).

Nature of Inquiry as to Full Faith and Credit. —

In a proceeding to determine whether a custody judgment is entitled to full faith and credit, the court’s inquiry is first confined to whether the judgment sought to be enforced was a final judgment rendered by a court with competent jurisdiction. If the court determines that the foreign judgment was final and was rendered by a court with proper jurisdiction, then the judgment is entitled to full faith and credit, and the court never reaches the merits of the custody action, unless one of the parties asserts that the judgment should be modified due to a substantial change in circumstances. Lynch v. Lynch, 303 N.C. 367 , 279 S.E.2d 840, 1981 N.C. LEXIS 1196 (1981).

When a court asserts jurisdiction to enforce a custody judgment of another state and no showing of a substantial change of circumstances is made, its jurisdiction terminates upon a final judgment awarding full faith and credit to the sister state’s decree. Lynch v. Lynch, 303 N.C. 367 , 279 S.E.2d 840, 1981 N.C. LEXIS 1196 (1981).

A temporary custody judgment is not entitled to full faith and credit and has no effect on defendant’s ability to seek full faith and credit of a final custody judgment subsequently rendered in another state. Lynch v. Lynch, 303 N.C. 367 , 279 S.E.2d 840, 1981 N.C. LEXIS 1196 (1981).

Indiana Order for Child Support Given Full Faith and Credit. —

Although there was no jurisdictional rule requiring the trial court to dismiss plaintiff father’s North Carolina action seeking definition of his child support obligations simply because defendant mother had filed an action in Indiana, where, when plaintiff’s motion came on for hearing, the Indiana court had already entered an order on the issue of child support, that order was entitled to full faith and credit in this State as long as plaintiff was not denied due process of law in the Indiana court’s assertion of jurisdiction over him. Lynch v. Lynch, 96 N.C. App. 601, 386 S.E.2d 607, 1989 N.C. App. LEXIS 1111 (1989).

C.Residence and Domicile

Findings of the court as to the residence of the parties are conclusive when supported by any competent evidence. Holbrook v. Holbrook, 38 N.C. App. 303, 247 S.E.2d 923, 1978 N.C. App. LEXIS 2171 (1978).

Domicile of Husband Not Necessarily Domicile of Wife and Children. —

Where the husband in his divorce action alleged that he had notified his wife that he would no longer live with her as husband and wife, he could not assert the fictional unity of persons for the purpose of maintaining that his domicile was the domicile of his wife and children. Coble v. Coble, 229 N.C. 81 , 47 S.E.2d 798, 1948 N.C. LEXIS 429 (1948).

IV.Notice

Purpose of Subdivision (d)(1). —

Subdivision (d)(1) of this section is designed to give the parties to a custody action adequate notice in order to insure a fair hearing. Clayton v. Clayton, 54 N.C. App. 612, 284 S.E.2d 125, 1981 N.C. App. LEXIS 2911 (1981).

Five Day (now 10 Day) Notice of Custody Hearing Not Absolute Right. —

Ordinarily a parent is entitled to at least five days’ (now 10 days’) notice (an intervening Saturday or Sunday excluded) of a hearing involving the custody of a child, but this is not an absolute right and is subject to the rule relating to waiver of notice and to the rule that a new trial will not be granted for mere technical error which could not have affected the result, but only for error which is prejudicial, amounting to the denial of a substantial right. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

A party entitled to notice of a motion may waive such notice. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

And ordinarily does this by attending the hearing of the motion and participating in it. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

Notice of Motion for Custody Served on Counsel of Record. —

A court which acquired jurisdiction of husband in a divorce proceeding before he left the State had jurisdiction to hear motion for custody filed after divorce decree where notice of motion was served on husband’s counsel of record. Weddington v. Weddington, 243 N.C. 702 , 92 S.E.2d 71, 1956 N.C. LEXIS 613 (1956).

Request for Variance for Child Support Guidelines. —

G.S. 50-13.4 does not identify any time restrictions for making the request for a hearing. However, to effectuate the purpose of that statute, any party in a pending action requesting a variance from the guidelines must, unless the request is made in the original pleadings, give at least ten days written notice as required by this section. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

Absent a timely and proper request for a variance of the guidelines, support set consistent with the guidelines was conclusively presumed to be in such amount as to meet the reasonable needs of the child for health, education, and maintenance. Browne v. Browne, 101 N.C. App. 617, 400 S.E.2d 736, 1991 N.C. App. LEXIS 141 (1991).

Because the trial court elected to deny a father’s motion requesting a deviation from the North Carolina Child Support Guidelines in its discretion, rather than dismiss it as untimely, the court of appeals did not need to address the timeliness of the motion. Simms v. Bolger, 264 N.C. App. 442, 826 S.E.2d 522, 2019 N.C. App. LEXIS 211 (2019).

Trial court’s temporary custody order in an action filed by the child’s putative father was not valid because the child’s presumed father was not given notice, even though, under G.S. 50-13.5(e)(3), in the discretion of the court, failure of service of notice would not affect the validity of an order; that provision only applied to orders entered with respect to support actions. Smith v. Barbour, 154 N.C. App. 402, 571 S.E.2d 872, 2002 N.C. App. LEXIS 1450 (2002), cert. denied, 599 S.E.2d 408, 2004 N.C. LEXIS 841 (N.C. 2004).

Adequacy of Notice. —

Trial court’s judgment to modify a child custody award and award sole custody of the minor children to the mother was affirmed because the father admitted that he was on actual notice that a motion to modify custody was set to be heard, but was continued to some date in the future in order to accommodate his need to find new counsel. In addition, he had actual notice of the scheduled court date for the hearing days prior to leaving for a planned vacation, but chose to proceed with the trip rather than attend the hearing; therefore, he had adequate notice of the hearing and an opportunity to be heard. Trivette v. Trivette, 162 N.C. App. 55, 590 S.E.2d 298, 2004 N.C. App. LEXIS 40 (2004).

No Notice. —

Where there was no motion for custody before the trial court, there was no notice of a motion for custody as required by subdivision (d)(1) of this section. Jones v. Jones, 109 N.C. App. 293, 426 S.E.2d 468, 1993 N.C. App. LEXIS 225 (1993).

Notice Held Sufficient. —

Mother had received adequate notice that the hearing would include changes to the visitation schedule since the father had moved the court for an order finding and holder the mother in contempt for her disobedience and failure to comply with the provision of prior orders entered in the case. Anderson v. Lackey, 163 N.C. App. 246, 593 S.E.2d 87, 2004 N.C. App. LEXIS 381 (2004).

V.Hearing

Time-tested methods for assuring an adequate and fair hearing must be applied in child custody proceedings. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

The question of custody is one addressed to the trial court. Hinkle v. Hinkle, 266 N.C. 189 , 146 S.E.2d 73, 1966 N.C. LEXIS 1311 (1966).

And Not to a Jury. —

Determining the custody of minor children is never the province of a jury; it is that of the judge of the court in which the proceeding is pending. Stanback v. Stanback, 270 N.C. 497 , 155 S.E.2d 221, 1967 N.C. LEXIS 1383 (1967).

No Right to Jury Trial on Custody and Support Issues. —

Pursuant to subsection (h) of this section, a supporting spouse is not entitled to a jury trial on the matter of custody and support of minor children. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).

In a wife’s action for alimony without divorce and for custody and support of the children, a trial court properly removed the case from the trial docket when the wife abandoned her claim to alimony, and the defendant was not entitled to a jury trial on the issue of abandonment of his children. Ferguson v. Ferguson, 9 N.C. App. 453, 176 S.E.2d 358, 1970 N.C. App. LEXIS 1385 (1970).

Jury to Determine Question of Fact. —

Whether a child was a “minor child of the marriage” within the purview of former G.S. 50-13 could be a question of fact rather than an issue of fact, and the trial court could call a jury to its aid to hear the evidence and determine the question. Carter v. Carter, 232 N.C. 614 , 61 S.E.2d 711, 1950 N.C. LEXIS 594 (1950).

An award of permanent custody may not be based upon affidavits. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982).

And Affidavits Are Not Admissible to Establish Material Facts in Custody Proceedings. —

The question to be determined in child custody hearings is certainly as important as any presented in the usual contract or tort litigation. Affidavits are not, as a rule, admissible in the trial of contract and tort cases as independent evidence to establish facts material to the issues being tried, and there is no more justification for resort to inferior evidence in child custody proceedings than in such other litigations. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

But a party to a child custody proceeding must object when affidavits are offered or ask permission to cross-examine, or else his silence will be deemed to give consent. By implication, if timely objection is made, affidavits should not be received, at least not without affording an opportunity for cross-examination. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

VI.Temporary Custody and Support

Court Has Inherent Authority to Make Temporary Orders. —

A court having jurisdiction of children located within this State has the inherent authority to protect those children and to make such temporary orders as their best interests may require. MacKenzie v. MacKenzie, 21 N.C. App. 403, 204 S.E.2d 561, 1974 N.C. App. LEXIS 1816 (1974).

Subdivisions (c)(2) and (d)(2) give the courts jurisdiction to enter temporary custody and support orders for minor children. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982).

Under subdivision (d)(2) of this section, in appropriate cases the court may enter orders for the temporary custody of a child pending the service of process. Zajicek v. Zajicek, 12 N.C. App. 563, 183 S.E.2d 850, 1971 N.C. App. LEXIS 1405 (1971); Broaddus v. Broaddus, 45 N.C. App. 666, 263 S.E.2d 842, 1980 N.C. App. LEXIS 2705 (1980). See also, Lynch v. Lynch, 45 N.C. App. 391, 264 S.E.2d 114, 1980 N.C. App. LEXIS 2635 (1980), aff'd in part and rev'd in part, 302 N.C. 189 , 274 S.E.2d 212, 1981 N.C. LEXIS 1045 (1981).

Once one of the bases for jurisdiction listed in G.S. 50A-3(a) has been established, the court may enter an ex parte order for temporary custody prior to service of process or notice, if the circumstances of the case render it appropriate. Hart v. Hart, 74 N.C. App. 1, 327 S.E.2d 631, 1985 N.C. App. LEXIS 3389 (1985).

Emergency Order Not Warranted. —

When defendant filed a motion for emergency custody on the day that plaintiff’s five-week summer visitation was to begin, alleging the parties’ child was exposed to a substantial risk of bodily injury or sexual abuse, and an immediate order curtailing plaintiff’s visitation was necessary pursuant to G.S. 50-13.5(d)(3), trial court did not err in imposing G.S. 1A-1-11(a) sanctions against defendant because defendant presented no evidence to substantiate the allegations of sexual abuse and had filed the motion for the improper purpose of blocking plaintiff’s scheduled summer visitation. Lamm v. Lamm, 210 N.C. App. 181, 707 S.E.2d 685, 2011 N.C. App. LEXIS 314 (2011).

Temporary Orders May Be Entered Ex Parte. —

Temporary orders under subdivision (c)(2) and (d)(2) of this section may be entered ex parte and prior to service of process or notice. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982); Regan v. Smith, 131 N.C. App. 851, 509 S.E.2d 452, 1998 N.C. App. LEXIS 1564 (1998).

Affidavits may be used as a basis for temporary orders under subdivision (c)(2) and (d)(2) of this section. Story v. Story, 57 N.C. App. 509, 291 S.E.2d 923, 1982 N.C. App. LEXIS 2691 (1982).

If the circumstances of a particular case so require, the court may enter an order for temporary custody, even pending service of process or notice under subsection (d)(1) of this section, and the use of affidavits as a basis for filing necessary facts for such purpose may be appropriate. In re Griffin, 6 N.C. App. 375, 170 S.E.2d 84, 1969 N.C. App. LEXIS 1189 (1969).

There may be occasions when there is considerable urgency for a temporary order for the custody of a child. In such instances, the judge may reach a decision on the basis of affidavits and other evidence produced at a preliminary hearing. The persons who have signed the affidavit are, of course, not present and there is no opportunity to cross-examine them, but this is said not to be objectionable, because the ultimate right of examination will be afforded the parties at the trial of the cause. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

Temporary Order Not Rendered Null and Void by Entry Prior to Service. —

Clearly, under subdivision (e)(3) of this section, the fact that defendant was not served prior to the court’s entry of a temporary order would not thereby render such order null and void. Broaddus v. Broaddus, 45 N.C. App. 666, 263 S.E.2d 842, 1980 N.C. App. LEXIS 2705 (1980).

Temporary Custody Order Did Not Become Permanent Order. —

Trial court erred in determining a June 2010 temporary custody order had, by operation of time, become a permanent custody order because the temporary order did not determine the issue of visitation, and a permanent custody hearing was set in less than twelve months from the entry of the temporary order; the father would not have been entitled to any visitation with the children if the temporary order had become the permanent order. Woodring v. Woodring, 742 S.E.2d 295, 2013 N.C. App. LEXIS 467 (N.C. Ct. App.), sub. op., op. withdrawn, 227 N.C. App. 638, 745 S.E.2d 13, 2013 N.C. App. LEXIS 609 (2013).

Order Was Temporary. —

Order granting a father visitation was temporary because it did not determine all the issues a hearing was set within a reasonable time, and the temporary order did not, therefore, become a final order by operation of time. Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13, 2013 N.C. App. LEXIS 609 (2013).

VII.Visitation Rights

A.In General

Visitation rights should not be permitted to jeopardize a child’s welfare. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

While a noncustodial parent has a right to reasonable visitation, that right is limited to avoid jeopardizing the child’s welfare. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277, 1986 N.C. App. LEXIS 2435 (1986).

The award of visitation rights is a judicial function which may not be delegated to the custodial parent. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Order giving custodial parent exclusive control over visitation will not be sustained. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Duty of Court to Include Visitation Provision. —

Once the parties failed to agree, it was the duty of the trial judge to safeguard defendant’s right to visitation by including a provision in its order specifying visitation periods. Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Trial court is not required to make specific findings to support a visitation schedule whenever a party contends the frequency of visitation is not reasonable. Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655, 1996 N.C. App. LEXIS 1296 (1996).

Visitation and child support rights are independent rights accruing primarily to the benefit of the minor child and one is not, and may not be made, contingent upon the other. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Receipt of Support May Not Be Conditioned on Visitation. —

A trial judge does not have authority to condition a minor child’s receipt of support paid by the noncustodial parent on compliance with court-ordered visitation allowed the noncustodial parent by ordering that child support paid by defendant be placed in escrow if minor child fails or refuses to abide by the visitation privileges allowed defendant. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Enforcement of Visitation Orders. —

Trial judges in this State have authority to enforce orders providing for visitation by the methods set forth in G.S. 50-13.3 , that is, by contempt proceedings and by injunction. Appert v. Appert, 80 N.C. App. 27, 341 S.E.2d 342, 1986 N.C. App. LEXIS 2136 (1986).

Modification of Visitation Order. —

Because the trial court’s visitation order was a permanent order, the trial court erred by failing to mention its latest permanent order and purporting to modify that older order; Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13, 2013 N.C. App. LEXIS 609 (2013).

B.Denial of Parents’ Rights

Presumption In Custody Disputes Between Two Parents. —

North Carolina Supreme Court also expressly overrules Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74 (2003), and any other Court of Appeals decisions purporting to apply the Petersen v. Rogers presumption in custody disputes between two parents. Routten v. Routten, 374 N.C. 571 , 843 S.E.2d 154, 2020 N.C. LEXIS 507 , cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495, 2020 U.S. LEXIS 5995 (2020).

Abandonment as Ground to Deny Visitation Rights. —

The general rule is that abandonment, by itself, does not constitute sufficient ground to deny visitation rights completely, and this rule is in accord with the principle adopted by the courts that the purpose of denying custody or visitation rights is not to punish the noncustodial parent. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822, 1980 N.C. App. LEXIS 2689 (1980).

Contingent Termination of Visitation. —

Where the trial judge had ample evidence before him to justify a conclusion that mother had purposefully engaged in a course of conduct designed to alienate the child’s affections for his father, and that these actions were detrimental to the child’s welfare, he did not abuse his discretion in fashioning an order directing termination of mother’s visitation privilege, pending a court hearing, applicable only on the happening of a certain condition (a repetition of that course of conduct), designed to prevent further harm to the child from this type of behavior. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277, 1986 N.C. App. LEXIS 2435 (1986).

Temporary Suspension of Visitation Rights. —

Trial court did not abuse its discretion in a child custody matter, in which primary physical custody of the parties’ children was awarded to the father, by temporarily suspending the mother’s visitation with the children pending their completion of a reunification program designed to repair the children’s relationship with the father, which the trial court found had been damaged by the mother’s alienating behaviors. Sneed v. Sneed, 261 N.C. App. 448, 820 S.E.2d 536, 2018 N.C. App. LEXIS 917 (2018).

Conditions on Parental Visitation. —

Trial court erred in granting a father the exclusive authority to decide when, where, and if the mother had visitation and to decide under whose supervision the mother had visitation because giving the father the exclusive control over the mother’s visitation could result in a complete denial of the mother’s right, G.S. 50-13.5(i), and delegated a judicial function to the father. Woodring v. Woodring, 742 S.E.2d 295, 2013 N.C. App. LEXIS 467 (N.C. Ct. App.), sub. op., op. withdrawn, 227 N.C. App. 638, 745 S.E.2d 13, 2013 N.C. App. LEXIS 609 (2013).

Restrictions on Visitation Rights. —

Trial court did not err in making its visitation determinations based upon its inability to determine the noncustodial parent’s fitness as a parent, mainly because of the parent’s refusal to testify regarding the child pornography allegations. The court stated in its order that it would revisit the issue of visitation once the parent obtained a psychological evaluation and a parenting assessment, and once the court obtained the results of forensic evaluation of the material recovered from the parent’s computer. Meadows v. Meadows, 246 N.C. App. 245, 782 S.E.2d 561, 2016 N.C. App. LEXIS 298 (2016).

Findings Required Where Severe Restrictions Are Placed on Visitation Rights. —

Where severe restrictions are placed on a parent’s visitation rights with his child, there should be some finding of fact, supported by competent evidence in the record, warranting such restrictions. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822, 1980 N.C. App. LEXIS 2689 (1980).

Where hostilities exist between estranged parents, it may be difficult for the noncustodial parent to maintain a relationship with his or her child when required to exercise visitation only in the presence of the other parent or a member of the other parent’s family who may share such hostilities. There are, of course, circumstances warranting such restrictions, but if they are imposed, they must be based on appropriate factual findings. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822, 1980 N.C. App. LEXIS 2689 (1980).

When severe restrictions are placed on the right of visitation, this section requires the trial judge to make findings of fact supported by competent evidence which warrant the restrictions. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981).

Subsection (i) of this section requires specific findings of fact to justify certain visitation restrictions. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921, 1984 N.C. App. LEXIS 3889 (1984).

Because the parameters placed on a mother’s visitation with the mother’s child were not the severe restrictions that effectively denied the right of reasonable visitation, the trial court did not err by entering the court’s visitation order without finding that the mother was an unfit person to have reasonable visitation. Evidence supported the finding that the mother’s behavior had caused the child stress and been deleterious to the child’s well-being so that it was in the best interest of the child that the mother was supervised for extended visits. Paynich v. Vestal, 269 N.C. App. 275, 837 S.E.2d 433, 2020 N.C. App. LEXIS 12 (2020).

When Finding of Unfitness Is Not Necessary. —

Trial court may grant full custody to one parent and deny visitation to the other parent, so long as the trial court has entered a written finding of fact that such a custody award is in the best interests of the children, without the need to have determined that the parent who has been denied visitation is a person deemed by the trial court to be unfit to spend time with the children. Routten v. Routten, 374 N.C. 571 , 843 S.E.2d 154, 2020 N.C. LEXIS 507 , cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495, 2020 U.S. LEXIS 5995 (2020).

Trial court denied visitation by defendant with the children without a determination that she was unfit; as there was no dispute that the trial court found that visitation with defendant would not be in the best interests of the children, this was a proper standard to apply in resolving the custody and visitation matters. Routten v. Routten, 374 N.C. 571 , 843 S.E.2d 154, 2020 N.C. LEXIS 507 , cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495, 2020 U.S. LEXIS 5995 (2020).

Statute identifies two different circumstances in which a parent can be denied visitation, and the disjunctive term “or” in G.S. 50-13.5(i) establishes that either of the circumstances is sufficient to justify the trial judge’s decision to deny visitation; in a dispute between two parents, if the trial court determines that visitation with one parent is not in a child’s best interests, then the trial court is authorized to deny visitation without a requirement to find the parent in question is unfit. Routten v. Routten, 374 N.C. 571 , 843 S.E.2d 154, 2020 N.C. LEXIS 507 , cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495, 2020 U.S. LEXIS 5995 (2020).

In a dispute between two parents with equal parental rights, the trial court must apply the best interest of the child standard to determine custody and visitation questions, and if the court determines that one parent should not be awarded reasonable visitation, the court shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child. Routten v. Routten, 374 N.C. 571 , 843 S.E.2d 154, 2020 N.C. LEXIS 507 , cert. denied, 141 S. Ct. 958, 208 L. Ed. 2d 495, 2020 U.S. LEXIS 5995 (2020).

Visitation Rights Eliminated. —

Trial court properly granted sole custody of a child to the mother and eliminated a father’s visitation privileges because the findings of fact supported its conclusion that the father could have no direct contact with the child; the trial court did not abuse its discretion in allowing the mother not to inform the father of her and the child’s address because the father threatened to kill her, failed to engage in therapy and to benefit from a domestic violence program, and was violent with her. Huml v. Huml, 264 N.C. App. 376, 826 S.E.2d 532, 2019 N.C. App. LEXIS 255 (2019).

Trial court did not abuse its discretion by eliminating a father’s access to information because the restriction was based on the specific facts of the case, and the trial court described its rationale in detail; the order was exceptionally detailed, well-organized, and thorough because the trial court noted the factual basis for the restrictions even to obtaining information from third parties and made detailed findings regarding the father’s failure to follow the requirements of prior orders. Huml v. Huml, 264 N.C. App. 376, 826 S.E.2d 532, 2019 N.C. App. LEXIS 255 (2019).

Trial court properly granted sole custody of a child to the mother and eliminated a father’s visitation privileges because the father consistently refused to take advantage of any opportunity to allow him to resume visitation; the father repeatedly failed to participate in counseling as ordered, to take medication as prescribed, to comply with orders regarding public visitation and with the rules governing supervised visitation, and to protect the child from exposure to domestic violence. Huml v. Huml, 264 N.C. App. 376, 826 S.E.2d 532, 2019 N.C. App. LEXIS 255 (2019).

Trial court did not err in denying the mother visitation as the children were ages 14 and 16 by the time the trial court’s order came out, and they were old enough for the trial court to give their wishes to no longer see the mother considerable weight; and the trial court made extensive findings about the negative impacts the mother had on the children. Malone-Pass v. Schultz, 2021-NCCOA-656, 868 S.E.2d 327, 2021- NCCOA-656, 2021 N.C. App. LEXIS 680 (N.C. Ct. App. 2021).

Findings of Fact. —

Trial court properly granted sole custody of a child to the mother and eliminated a father’s visitation privileges because its findings of fact were sufficient; the trial court did not find that any inappropriate sexual contact or behavior actually happened but was concerned about the possibility of inappropriate sexual behavior; however, the evidence was not sufficient for the trial court to make a finding it had occurred or had not occurred. Huml v. Huml, 264 N.C. App. 376, 826 S.E.2d 532, 2019 N.C. App. LEXIS 255 (2019).

Findings Held Sufficient. —

Finding of trial court that defendant had previously taken minor child to Texas under a false pretense and had subsequently refused to return him to North Carolina was a sufficient and appropriate factual finding to support the court’s limitation as to the location of visitation (in North Carolina at plaintiff ’s home). Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444, 1985 N.C. App. LEXIS 4397 (1985).

Judge did not err by imposing excessive restrictions on mother’s visitations with her son; evidence supported the judge’s finding that mother’s demonstrations of anger and hostility in the presence of the child and her frustration of the relationship between the child and father necessitated, for the child’s best interest, the restrictions the judge imposed on the visitation. Correll v. Allen, 94 N.C. App. 464, 380 S.E.2d 580, 1989 N.C. App. LEXIS 539 (1989).

Trial court erred in suspending a father’s visitation because the trial court failed to make written findings of fact regarding the fitness of the father or the best interests of the children, as required by G.S. 50-13.5(i). Maxwell v. Maxwell, 212 N.C. App. 614, 713 S.E.2d 489, 2011 N.C. App. LEXIS 1225 (2011).

Trial court found that it would not be in the children’s best interests to have any visitation with the father because he confessed that he had engaged in inappropriate sexual behavior with one of his minor daughters; he entered pleas of guilty to five counts of indecent liberties with that minor daughter; and he engaged in grooming behaviors with his other two daughters and inappropriately touched them. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691, 2014 N.C. App. LEXIS 232 (2014).

Trial court did not err when it denied visitation between the child and mother under N.C. Gen. Stat. § 50-13.5(i); mother hid the child from father for five years by avoiding arrest warrants, contemplated killing father, had homicidal and suicidal thoughts regarding the child and herself, and was unwilling to comply with court orders. Isom v. Duncan, 2021-NCCOA-453, 279 N.C. App. 171, 864 S.E.2d 831, 2021- NCCOA-453, 2021 N.C. App. LEXIS 475 (2021).

Although the court struck one part of one finding as not supported by the evidence, the unchallenged findings and remaining challenged findings were substantially supported and demonstrated that mother’s behaviors had been more harmful than beneficial to the child and many of mother’s actions would have life-long mental, physical, and emotional consequences for the child; denial of visitation was upheld. Isom v. Duncan, 2021-NCCOA-453, 279 N.C. App. 171, 864 S.E.2d 831, 2021- NCCOA-453, 2021 N.C. App. LEXIS 475 (2021).

Findings Held Insufficient. —

The trial court’s findings in a child custody proceeding that respondent mother had abandoned her child and that it would not be in the best interests of the child for him to be carried back and forth between North Carolina, home of the father, and New Jersey, home of the mother, were insufficient to support the trial court’s order restricting respondent’s visiting privileges, which were limited to one weekend a month, to occasions only when petitioner father or his designated representative was present. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822, 1980 N.C. App. LEXIS 2689 (1980).

No competent evidence showed that the father had engaged in any conduct that warranted forfeiture of his visitation rights or that the exercise of his visitation rights would be detrimental to the child’s best interest, and the court’s factual finding that the motel room where the father lived was an unfit environment for visitation did not support supervised visitation. Hinkle v. Hartsell, 131 N.C. App. 833, 509 S.E.2d 455, 1998 N.C. App. LEXIS 1543 (1998).

Where the court merely recited the testimony of witnesses and did not make the required findings of fact, further findings of fact and a determination of the father’s parental fitness was needed if he was to be denied all contact with his daughter. Moore v. Moore, 160 N.C. App. 569, 587 S.E.2d 74, 2003 N.C. App. LEXIS 1827 (2003).

C.Grandparents’ Rights

Standing to Seek Grandparent Visitation. —

Paternal grandparents had statutory standing to seek permanent visitation rights, notwithstanding that the father had died, as they had been allowed to intervene when custody between the father and the mother was in dispute. Alexander v. Alexander, 276 N.C. App. 148, 856 S.E.2d 136, 2021- NCCOA-61, 2021 N.C. App. LEXIS 68 (2021).

Modification of Grandparents’ Visitation Rights. —

Before an order providing visitation for grandparents of a minor child may be modified, the party seeking modification must show changed circumstances and an abuse of discretion by the trial judge. In re Jones, 62 N.C. App. 103, 302 S.E.2d 259, 1983 N.C. App. LEXIS 2801 (1983).

Grandparents’ Right to Seek Visitation Terminated Upon Death of Daughter/Non-Custodial Parent. —

The trial court’s jurisdiction over the issues of visitation and custody regarding plaintiff’s grandchildren terminated upon the death of plaintiff’s daughter, where the son-in-law had exclusive custody. Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559, 2000 N.C. App. LEXIS 543 (2000).

Visitation Rights Survived Termination of Parental Rights. —

Trial court erred in concluding a grandmother’s visitation rights under a prior custody order did not survive termination of a mother’s parental rights because the grandmother not only intervened in the case but also obtained visitation rights via a permanent custody order; thus, the termination of the mother’s parental rights did not extinguish the grandmother’s court-ordered visitation rights, and the grandmother could seek to enforce the prior custody order through contempt proceedings. Adams v. Langdon, 264 N.C. App. 251, 826 S.E.2d 236, 2019 N.C. App. LEXIS 216 (2019).

Right to File Suit. —

Subsection (j) of this section makes it clear that grandparents have the right to file suit for custody or visitation during an ongoing proceeding, but it does not restrict their right to bring an initial custody suit pursuant to G.S. 50-13.1 when there are allegations that the parent is unfit. Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258, 1996 N.C. App. LEXIS 1066 (1996).

The grandmother did not have standing under this section to seek visitation rights with her grandchildren, where the children had been adopted by their biological aunt and her husband, and there was no custody dispute. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226, 1998 N.C. App. LEXIS 1544 (1998).

There are four statutes in North Carolina which permit a grandparent to maintain an action for custody or visitation of a minor child, and although plaintiff, mother of the deceased father of the two minor children, did not specify under which statute she filed, it was clear that she had no right to proceed under G.S. 50-13.1(a) , 50-13.2(b1), 50-13.2A, or under this section. Shaut v. Cannon, 136 N.C. App. 834, 526 S.E.2d 214, 2000 N.C. App. LEXIS 158 (2000).

Grandparents lacked standing to bring a claim for visitation because there was no ongoing custody proceeding, as the mother had a natural and legal right to custody and control of the child upon the father’s death and the child had not been adopted by a stepparent or relative. Graham v. Jones, 270 N.C. App. 674, 842 S.E.2d 153, 2020 N.C. App. LEXIS 249 (2020).

Grandparents’ Rights When Family Intact. —

Under G.S. 50-13.1(a) , 50-13.2(b1), 50-13.2A, and 50-13.5(j), a grandparent’s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative—the “intact family” rule; in a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child’s family is not intact before the grandparent can intervene to request visitation with his grandchild—G.S. 50-13.1(a), 50-13.2(b1), 50-13.2A, 50-13.5(j) does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor children’s family is intact. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486, 2003 N.C. App. LEXIS 729 (2003).

Lack of Intact Family Was Not Alleged So Grandparent Could Have Standing to Intervene for Visitation. —

Under G.S. 50-13.5(j), a grandparent was required to, and did not, allege that the wife and the child were not an “intact family” or that the underlying custody controversy had become active; therefore, his complaint did not allege facts to support his claim, so he lacked standing to intervene to gain visitation, and the grant of the motion to dismiss his claim for visitation was appropriate. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486, 2003 N.C. App. LEXIS 729 (2003).

Single Parent and One Child Can Be Intact Family. —

Single parent and her child can constitute an “intact family” for the purposes of the intact family rule. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486, 2003 N.C. App. LEXIS 729 (2003).

I.In General

Notice and Due Process Considerations. —

Although this section and G.S. 50-16.4 provide for attorney’s fees in both modification of child support actions and alimony actions, this authority does not override a party’s basic constitutional rights to notice and due process considerations. Spencer v. Spencer, 133 N.C. App. 38, 514 S.E.2d 283, 1999 N.C. App. LEXIS 333 (1999).

This section applies to a proceeding to compel the future support of the child. Tidwell v. Booker, 290 N.C. 98 , 225 S.E.2d 816, 1976 N.C. LEXIS 1046 (1976).

And not to a proceeding to compel reimbursement for past payments made by a person secondarily liable for such child’s support. Tidwell v. Booker, 290 N.C. 98 , 225 S.E.2d 816, 1976 N.C. LEXIS 1046 (1976).

The legislature set different standards in actions for support and in actions for custody and support in enacting this section. Taylor v. Taylor, 343 N.C. 50 , 468 S.E.2d 33, 1996 N.C. LEXIS 157 (1996).

This section does not require a determination that one spouse is a dependent spouse and the other a supporting spouse. Taylor v. Taylor, 343 N.C. 50 , 468 S.E.2d 33, 1996 N.C. LEXIS 157 (1996).

Costs and fees. —

Statute concerns leveling the field in a custody action by ensuring each parent has competent representation; the trial court’s authority to award attorney’s fees does not depend upon who “wins” any particular ruling in a custody proceeding. Blanchard v. Blanchard, 279 N.C. App. 269, 865 S.E.2d 686, 2021- NCCOA-487, 2021 N.C. App. LEXIS 519 (2021).

Nothing in the plain language of the statute suggests a determination that an interested party has acted in good faith or has insufficient means to cover the costs associated with the action are determinations contingent on the ultimate outcome of an appeal, by either party, from the underlying judgment. Blanchard v. Blanchard, 279 N.C. App. 269, 865 S.E.2d 686, 2021- NCCOA-487, 2021 N.C. App. LEXIS 519 (2021).

Attorneys’ fees are not recoverable in an action for equitable distribution, so that, in a combined action, the fees awarded must be attributable to work by the attorneys on the divorce, alimony and child support actions. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595 (1986). In accord with the main volume. See Holder v. Holder, 87 N.C. App. 578, 361 S.E.2d 891, 1987 N.C. App. LEXIS 3283 (1987).

Settlement Agreement May Provide for Recovery of Attorney’s Fees. —

The public policy of this State encourages settlement agreements and supports the inclusion of a provision for the recovery of attorney’s fees in settlement agreements. Bromhal v. Stott, 341 N.C. 702 , 462 S.E.2d 219, 1995 N.C. LEXIS 524 (1995).

Applicability in Action Involving Illegitimate Child. —

This section does not apply to civil actions to establish paternity under G.S. 49-14 , but would authorize an award of reasonable attorneys’ fees for custody and support actions involving an illegitimate child whose paternity has been determined. Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811, 1985 N.C. App. LEXIS 3503 (1985), aff'd in part and rev'd in part, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Attorneys’ fees incurred in prosecuting paternity actions may not be awarded under this section, but may only be assessed as costs under G.S. 6-21(10). Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, 1989 N.C. App. LEXIS 671 (1989).

G.S. 50-13.6 did not apply to a civil action to establish paternity under G.S. 49-14 . Guilford County ex rel. Holt v. Puckett, 191 N.C. App. 693, 664 S.E.2d 362, 2008 N.C. App. LEXIS 1471 (2008).

Visitation Action Qualifies As Custody Action for Attorney Fee Purposes. —

Action by intervening grandparents for visitation qualifies as an action for custody, and if that action falls within the scope of G.S. 50-13.6 as an action for the custody, support, or both of a minor child for the purposes of awarding fees to the grandparents, then such an action must also fall within the scope of the statute for purposes of ordering the grandparents to pay; an award of fees against grandparents seeking visitation rights was authorized. Sullivan v. Woody, 271 N.C. App. 172, 843 S.E.2d 306, 2020 N.C. App. LEXIS 304 (2020).

Contingent Fee Agreements Not Enforceable. —

A contract for the payment of a fee to an attorney contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony and/or property awarded is void as against public policy. Such a contract is unenforceable exclusively by virtue of the fact that it violates the public policy of this State. Thompson v. Thompson, 70 N.C. App. 147, 319 S.E.2d 315, 1984 N.C. App. LEXIS 3639 (1984), rev'd, 313 N.C. 313 , 328 S.E.2d 288, 1985 N.C. LEXIS 1533 (1985).

A trial court has no discretion to award statutory legal fees for services rendered in a child custody and support action pursuant to a contingent fee contract, which is void as against public policy. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, 1986 N.C. App. LEXIS 2274 (1986).

Contingent fee provision in contract between mother seeking child support and attorneys, whose stated purpose was to recover a lump sum award, from which a percentage attorneys’ fee would be derived, permeated the entire agreement, as it was the essence of the contract; therefore, the entire contract was void as against public policy. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, 1986 N.C. App. LEXIS 2274 (1986).

But Fees May Be Awarded for Services after Withdrawal of Contract. —

Statutory legal fees for services rendered in a child custody and support action may be awarded for the period beginning after illegal contingent fee contract is withdrawn. Davis v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19, 1986 N.C. App. LEXIS 2274 (1986).

Trial judge is permitted to exercise considerable discretion in allowing or disallowing attorneys’ fees in child custody or support cases. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971); Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

The amount awarded as counsel fees also comes within the discretion of the trial judge and will not be disturbed in the absence of an abuse of discretion. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E.2d 132, 1969 N.C. App. LEXIS 1180 (1969).

When the statutory requirements for a custody suit or a custody and support suit have been met, the amount of attorneys’ fees to be awarded rests within the sound discretion of the trial judge and is reviewable on appeal only for abuse of discretion. Hudson v. Hudson, 299 N.C. 465 , 263 S.E.2d 719, 1980 N.C. LEXIS 940 (1980); Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986).

In a custody and support action, once the statutory requirements of this section have been met, whether to award attorney’s fees and in what amounts is within the sound discretion of the trial judge and is only reviewable based on an abuse of discretion. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900, 1991 N.C. App. LEXIS 464 (1991).

The amount of the award of attorneys’ fees is within the discretion of the trial judge and will not be reversed in the absence of an abuse of discretion. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825, 1986 N.C. App. LEXIS 2088 (1986).

Court’s discretion in disallowing attorneys’ fees is limited only by the abuse of discretion rule. Puett v. Puett, 75 N.C. App. 554, 331 S.E.2d 287, 1985 N.C. App. LEXIS 3675 (1985).

As to the effect of this section and other statutes on the court’s discretion, see Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

Binding Effect of Trial Court’s Determination Absent Abuse. —

The trial court’s determination of attorneys’ fees is binding on the appellate courts in the absence of abuse of discretion. Wyche v. Wyche, 29 N.C. App. 685, 225 S.E.2d 626, 1976 N.C. App. LEXIS 2627 , cert. denied, 290 N.C. 668 , 228 S.E.2d 459, 1976 N.C. LEXIS 1173 (1976); Evans v. Craddock, 61 N.C. App. 438, 300 S.E.2d 908, 1983 N.C. App. LEXIS 2692 (1983).

Reviewable Question of Law in Custody and Custody and Support Suits. —

Whether the requirements of this section for a custody suit or a custody and support suit have been met is a question of law reviewable on appeal. Hudson v. Hudson, 299 N.C. 465 , 263 S.E.2d 719, 1980 N.C. LEXIS 940 (1980); Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61, 1999 N.C. App. LEXIS 405 (1999).

Proof Required to Support Award in Custody and Custody and Support Suits. —

In a custody suit or a custody and support suit, the trial judge, pursuant to the first sentence in this section, has the discretion to award attorneys’ fees to an interested party when that party is (1) acting in good faith and (2) has insufficient means to defray the expense of the suit. The facts required by the statute must be alleged and proved to support an order for attorneys’ fees. Hudson v. Hudson, 299 N.C. 465 , 263 S.E.2d 719, 1980 N.C. LEXIS 940 (1980).

Trial court found sufficient facts to support an award of attorney’s fees to the mother under G.S. 50-13.6 in the father’s action seeking child support; because the trial court considered both child custody and child support issues, it was not required to make an additional finding of fact regarding a refusal to provide child support in order to award the mother attorney’s fees. Burr v. Burr, 153 N.C. App. 504, 570 S.E.2d 222, 2002 N.C. App. LEXIS 1185 (2002).

Award of counsel fees is appropriate whenever it is shown that the spouse is, in fact, dependent, is entitled to the relief demanded, and is without sufficient means whereon to subsist during the prosecution and defray the necessary expenses thereof. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787, 1981 N.C. App. LEXIS 2604 (1981).

Award Proper in Case of Frivolous Action. —

Evidence of the father’s lack of contact with the child after the parties separated was sufficient to support the district court’s conclusion that the father’s action for custody of the child was frivolous; therefore, the award of attorney’s fees to the mother was proper. Doan v. Doan, 156 N.C. App. 570, 577 S.E.2d 146, 2003 N.C. App. LEXIS 205 (2003).

Financial Circumstances. —

Trial court erred in awarding attorney fees to a father because it could have misapprehended its ability to consider the financial circumstances of the mother; the order was remanded for the trial court to reconsider its discretionary award, and in exercising its discretion, the trial court could decline to consider the mother’s financial situation in light of all of the circumstances of the case or it could consider her financial situation and compare it to the father’s situation. Schneider v. Schneider, 256 N.C. App. 228, 807 S.E.2d 165, 2017 N.C. App. LEXIS 937 (2017).

Trial court is not required to consider the financial circumstances of the party ordered to pay attorney fees, but the trial court is allowed, in its discretion, to consider the financial circumstances of the party ordered to pay and to compare the financial situations of the parties. Schneider v. Schneider, 256 N.C. App. 228, 807 S.E.2d 165, 2017 N.C. App. LEXIS 937 (2017).

Consideration of Estate. —

Trial court, in ruling on a motion for attorney’s fees in a child custody and support action, may determine that a party has sufficient means to defray the cost of the action without considering the estate of the other party. Taylor v. Taylor, 343 N.C. 50 , 468 S.E.2d 33, 1996 N.C. LEXIS 157 (1996).

Requirement of Insufficient Means. —

Before attorneys’ fees may be awarded in an alimony case to the dependent spouse under G.S. 50-16.3 and G.S. 50-16.4 , and before attorneys’ fees may be awarded to the interested party in a custody, support, or custody and support suit under this section, that person must have insufficient means to defray the expense of the suit; that is, he or she must be unable to employ adequate counsel in order to proceed as litigant to meet the other spouse as litigant in the suit. Hudson v. Hudson, 299 N.C. 465 , 263 S.E.2d 719, 1980 N.C. LEXIS 940 (1980); Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

Sufficient Allegations of Insufficient Means. —

Allegations that plaintiff was the dependent spouse and that she had insufficient means to support the children during the pendency of the suit were sufficient to support an award of counsel fees under this section. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979).

Required Facts Must Be Found and Proved. —

Before attorneys’ fees can be taxed under this section, the facts required by the section, that movant (1) is acting in good faith, and (2) has insufficient means to defray the expenses of the suit, must be both alleged and proved. Allen v. Allen, 65 N.C. App. 86, 308 S.E.2d 656, 1983 N.C. App. LEXIS 3398 (1983).

An order for attorneys’ fees pursuant to this section in an action for child custody or support, or both, must be supported by findings, required by the statute, that the party seeking the award is (1) an interested party acting in good faith and (2) has insufficient means to defray the expense of the suit. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825, 1986 N.C. App. LEXIS 2088 (1986).

Before awarding attorneys’ fees, the trial court must make specific findings of fact concerning: (1) The ability of the movants to defray the cost of the suit, i.e., that the movants are unable to employ adequate counsel in order to proceed as a litigant to meet the other litigants in the suit; (2) the good faith of the movants in proceeding in the suit; (3) the lawyer’s skill; (4) the lawyer’s hourly rate; and (5) the nature and scope of the legal services rendered. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, 1986 N.C. App. LEXIS 2342 (1986).

In order to be awarded attorneys’ fees in an action for divorce, alimony, custody and child support, a spouse must be found to be a dependent spouse in addition to being found to be unable to defray the expense of the suit. Patterson v. Patterson, 81 N.C. App. 255, 343 S.E.2d 595, 1986 N.C. App. LEXIS 2259 (1986).

In order to award attorneys’ fees in an action involving only child support, the trial court must find as fact that (1) the interested party (a) acted in good faith and (b) has insufficient means to defray the expenses of the action and further, that (2) the supporting party refused to provide adequate support under the circumstances existing at the time of the institution of the action or proceeding. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

An award of attorney’s fees to the father was not supported by sufficient factual findings, where the trial court concluded that the father did not have sufficient assets with which to pay his attorney’s fees and that the mother did have the means to pay, but there were no findings as to father’s monthly income or expenses, and no explicit finding that he acted in good faith in instituting a civil contempt action. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61, 1999 N.C. App. LEXIS 405 (1999).

Trial court did not err in awarding attorney’s fees to plaintiff for previous appeal where they were not mentioned in remand instruction because trial court made necessary findings required by statute; plaintiff’s motion for modification of custody and support was filed in good faith, defendant was paying inadequate amount of child support, defendant had refused to mediate issue, and plaintiff had insufficient means to defray expense of suit. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356, 2013 N.C. App. LEXIS 754 (2013).

Trial court failed to make any findings in its order as to whether plaintiff had acted in good faith and whether defendant refused to provide adequate child support, and the findings of fact, without more, were insufficient to support an award of attorney fees to plaintiff; the trial court failed to make sufficient findings of fact upon which a determination of the requisite reasonableness could be based, and the trial court also failed to make findings regarding the nature and scope of the legal services rendered to support its award. Davignon v. Davignon, 245 N.C. App. 358, 782 S.E.2d 391, 2016 N.C. App. LEXIS 188 (2016).

Reasonableness as Key Factor. —

Reasonableness, not arbitrary classification of attorney activity, is the key factor under all the attorneys’ fees statutes. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, 1984 N.C. App. LEXIS 3646 (1984).

Order Must Contain Factual Findings. —

A proper order under this section must contain factual findings upon which a determination of the reasonableness of the counsel fees might be based, e.g., findings as to the nature and scope of the legal services rendered, and the time and skill required. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985); Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986).

The trial court made insufficient findings relative to its award of attorneys’ fees where it failed to take into account the plaintiff’s liquid estate of $88,000 and focused instead on her negative disposable income and where it failed to determine whether she was an interested party acting in good faith, required for actions involving child support. Bookholt v. Bookholt, 136 N.C. App. 247, 523 S.E.2d 729, 1999 N.C. App. LEXIS 1376 (1999).

In a father’s appeal from a child custody and support order, although the trial court denied a mother’s request for attorneys’ fees under G.S. 50-13.6 , it made no findings relating to that denial, such as whether the mother acted in good faith or whether she had insufficient means to defray the expense of the suit. Consequently, the case was remanded for entry of proper factual findings to support the trial court’s decision regarding the mother’s request for attorneys’ fees. Diehl v. Diehl, 177 N.C. App. 642, 630 S.E.2d 25, 2006 N.C. App. LEXIS 1180 (2006).

In a custody dispute, a trial court abused its discretion in awarding a father reasonable attorney’s fees, G.S. 50-13.6 , because the trial court failed to make findings of fact supported by evidence that the father did not have sufficient means to employ counsel and the mother had sufficient disposable income to pay the father’s attorney’s fees; although information regarding the father’s gross income and employment was present in the record in the father’s testimony, there were no findings in the trial court’s order which detailed the information. Dixon v. Gordon, 223 N.C. App. 365, 734 S.E.2d 299, 2012 N.C. App. LEXIS 1312 (2012).

Although the trial court was not required to find that the father had resources available in order to award attorney’s fees to the mother, the trial court erred in awarding attorney’s fees to the mother without determining whether the mother had insufficient means to defray the cost of counsel. Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691, 2014 N.C. App. LEXIS 232 (2014).

Trail court’s order awarding attorney fees to the father failed to make any findings regarding the reasonableness of the attorney fees, as it did not make any findings as to nature and scope of the legal services rendered, the sill and time required, the attorney’s hourly rate, or its reasonableness in comparison with that of other lawyers. Lueallen v. Lueallen, 249 N.C. App. 292, 790 S.E.2d 690, 2016 N.C. App. LEXIS 913 (2016).

Trial court’s award of attorney’s fees to a mother was vacated because the trial court failed to make any of the requisite findings necessary to award attorney’s fees. Wilson v. Guinyard, 254 N.C. App. 229, 801 S.E.2d 700, 2017 N.C. App. LEXIS 453 (2017).

Findings of Fact Must Support Reasonableness of Fees. —

G.S. 50-16.4 and this section permit the entering of a proper order for reasonable counsel fees for the benefit of a dependent spouse, but only where the record contains findings of fact, such as the nature and scope of the legal services rendered and the skill and time required, upon which a determination of the requisite reasonableness could be based. Austin v. Austin, 12 N.C. App. 286, 183 S.E.2d 420, 1971 N.C. App. LEXIS 1348 (1971).

The trial court erred in failing to make findings of fact as to the reasonableness of the attorneys’ fees incurred by the plaintiff after requesting and receiving a detailed affidavit from the plaintiff’s counsel setting forth the nature and scope of the legal services. Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979).

To support an award of attorneys’ fees, the trial court should make findings as to the lawyer’s skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent. Falls v. Falls, 52 N.C. App. 203, 278 S.E.2d 546, 1981 N.C. App. LEXIS 2444 (1981); Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61, 1999 N.C. App. LEXIS 405 (1999).

As this section requires that awards of attorneys’ fees be reasonable, cases construing the statute have in effect annexed a fifth requirement concerning reasonableness onto the express statutory ones; namely, that the record must contain findings of fact upon which a determination of the requisite reasonableness can be based, for example, findings pertaining to the nature and scope of the legal services rendered and the skill and time required. Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789, 1984 N.C. App. LEXIS 3215 (1984).

Because this section allows for an award of reasonable attorneys’ fees, cases construing the statute have in effect annexed an additional requirement concerning reasonableness onto the express statutory ones. Thus, the record must contain additional findings of fact upon which a determination of the requisite reasonableness can be based, such as findings regarding the nature and scope of the legal services rendered, the skill and time required, the attorneys’ hourly rate, and its reasonableness in comparison with that of other lawyers. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825, 1986 N.C. App. LEXIS 2088 (1986).

An order awarding counsel fees in a child support or alimony action must contain a finding or findings upon which a determination of the reasonableness of the award can be based, such as the nature and scope of the legal services rendered, the time and skill required, and the attorney’s hourly rate in comparison to the customary charges of attorneys practicing in that general area. Weaver v. Weaver, 88 N.C. App. 634, 364 S.E.2d 706, 1988 N.C. App. LEXIS 1187 (1988).

Partial listing of legal expenses is an insufficient finding of fact as to the reasonable worth of attorneys’ fees. Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E.2d 42, 1977 N.C. App. LEXIS 1875 (1977).

Fees Where Increase in Support Not Warranted. —

The court would abuse its discretion if, after determining that an increase in the award of child support was not warranted under the circumstances, it nevertheless proceeded to award attorneys’ fees to plaintiff. Walker v. Tucker, 69 N.C. App. 607, 317 S.E.2d 923, 1984 N.C. App. LEXIS 3547 (1984).

Merit Bonus. —

While the quality of services rendered is properly considered in awarding fees, as well as the nature of the services required, and hence the scope and complexity of the case, there is no North Carolina authority for an award of a “merit bonus.” Even assuming such bonuses are allowed, as under federal practice, that should occur only in the rare case where the applicant specifically shows superior quality representation and exceptional success. Coastal Prod. Credit Ass'n v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650, 1984 N.C. App. LEXIS 3646 (1984).

Remand for Lack of Evidence as to Reasonableness. —

Where an award of counsel’s fees was based on attorney’s affidavit stating the number of hours spent on the case, but there was no evidence before the trial court as to the nature and scope of the legal services and the skill and time required, the award was not sufficiently based, and would be vacated and remanded. Rickenbaker v. Rickenbaker, 21 N.C. App. 276, 204 S.E.2d 198, 1974 N.C. App. LEXIS 1778 (1974).

Order awarding attorneys’ fees which failed to satisfy requirement of findings as to the lawyer’s skill, his hourly rate, its reasonableness in comparison with that of other lawyers, what he did, and the hours he spent was insufficient and case would be remanded for appropriate findings as to attorneys’ fees. Coleman v. Coleman, 74 N.C. App. 494, 328 S.E.2d 871, 1985 N.C. App. LEXIS 3539 (1985).

Where trial judge made no finding of good faith by plaintiff and no indication of what portion of attorney fees was attributable to custody and support aspects of case, award of attorneys’ fees would be vacated and the case remanded for further proceedings on that issue. Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

Findings supported plaintiff’s good faith and that plaintiff had insufficient means to defray the expense of this heavily litigated child custody dispute, and while the trial court also made extensive findings concerning the nature of the legal services rendered, the trial court failed to make the findings of fact necessary for a determination regarding what amount of fees were reasonably incurred as the result of litigation by the grandparents as intervenors, requiring remand. Sullivan v. Woody, 271 N.C. App. 172, 843 S.E.2d 306, 2020 N.C. App. LEXIS 304 (2020).

Multiple awards of counsel fees in the same domestic action are, in the proper circumstances, within the court’s discretion to allow. Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986).

Legitimate work by counsel in precursory activity is allowable within an attorneys’ fee award in connection with a domestic case. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825, 1986 N.C. App. LEXIS 2088 (1986).

Unreasonable Depletion of Separate Estate Not Intended. —

It would be contrary to the intent of the legislature to require one seeking an award of attorneys’ fees to meet the expenses of litigation through the unreasonable depletion of her separate estate, where her separate estate is smaller than that of the other party. Cobb v. Cobb, 79 N.C. App. 592, 339 S.E.2d 825, 1986 N.C. App. LEXIS 2088 (1986).

Findings Held Insufficient. —

Factual findings on award of attorneys’ fees were deficient as to child support where there was no finding that the supporting spouse refused to provide adequate support under the circumstances existing at the time the action was initiated, and as to both alimony and child support, where there were no factual findings upon which a determination of the reasonableness of the award could be based, other than the trial court’s statement that the time expended was “reasonably necessary.” Patton v. Patton, 78 N.C. App. 247, 337 S.E.2d 607, 1985 N.C. App. LEXIS 4318 (1985), rev'd in part, 318 N.C. 404 , 348 S.E.2d 593, 1986 N.C. LEXIS 2658 (1986).

Award of Fees Not Proper. —

Since the merits of custody modification case were not considered, an award of attorney fees under G.S. 50-13.6 was not permitted. Hausle v. Hausle, 226 N.C. App. 241, 739 S.E.2d 203, 2013 N.C. App. LEXIS 349 (2013).

In a child support case, a mother was not awarded attorney’s fees because she had the means to defray the cost of the litigation; moreover, the father did not refuse to provide support which was adequate under the circumstances. The record indicated that the father complied with the terms of an agreement directing him to make child support payments; in fact, he voluntarily made support payments in excess of what he was required to pay. Hinshaw v. Kuntz, 234 N.C. App. 502, 760 S.E.2d 296, 2014 N.C. App. LEXIS 666 (2014).

Trial court erred by awarding the wife attorney fees for the modification of child support because the husband was still paying his full obligation at the time of the institution of both motions to modify child support and by awarding fees without specifying the basis. Hill v. Hill, 261 N.C. App. 600, 821 S.E.2d 210, 2018 N.C. App. LEXIS 1004 (2018).

Trial court erred in denying a father’s motion for relief concerning the enforceability of an award for attorney’s fees to the intervenors because, inter alia, the trial court was not statutorily authorized to enter a civil judgment taxing the costs of attorney’s fees to a fund that was unrelated to the subject matter of the litigation. Roark v. Yandle, 2022-NCCOA-292, 2022 N.C. App. LEXIS 292 (May 3, 2022).

Award of Fees Held Error. —

The trial court erred in requiring plaintiff father to pay counsel fees of defendant mother for a hearing upon defendant’s motion for an increase in the amount of child support payments made by plaintiff, where there was no showing or finding that at the time of the hearing defendant was a dependent spouse. Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348, 1972 N.C. App. LEXIS 2033 , cert. denied, 281 N.C. 314 , 188 S.E.2d 897, 1972 N.C. LEXIS 1062 (1972) (decided prior to the 1973 amendment to this section) .

Where the trial court failed to make a finding of fact with respect to the wife’s ability to defray the expense of the suit, as required by this section, the court abused its discretion in ordering plaintiff husband to pay attorneys’ fees. Nolan v. Nolan, 20 N.C. App. 550, 202 S.E.2d 344, 1974 N.C. App. LEXIS 2491 , cert. denied, 285 N.C. 234 , 204 S.E.2d 24, 1974 N.C. LEXIS 951 (1974); Rogers v. Rogers, 39 N.C. App. 635, 251 S.E.2d 663, 1979 N.C. App. LEXIS 2531 (1979).

The trial court could not order defendant to pay plaintiff’s attorney for the time spent in representing her on a contempt citation stemming from her violation of defendant’s court-ordered visitation rights. Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E.2d 429, 1980 N.C. App. LEXIS 2852 (1980).

For additional case in which award of fees was held error, see Norton v. Norton, 76 N.C. App. 213, 332 S.E.2d 724, 1985 N.C. App. LEXIS 3854 (1985).

Findings were inadequate to support an award for payment of attorneys’ fees where trial court failed to make specific findings of fact required by statute and case law and instead found only that plaintiff did not have the ability to defray the costs and expenses to employ adequate representation, that the attorney had provided valuable services, and that the attorney expended in excess of five hours representing plaintiff. Cameron v. Cameron, 94 N.C. App. 168, 380 S.E.2d 121, 1989 N.C. App. LEXIS 453 (1989).

Where plaintiff introduced affidavits of her legal expenses but trial court made no findings on all the factors required under this section, award of attorneys’ fees was vacated. Napowsa v. Langston, 95 N.C. App. 14, 381 S.E.2d 882, 1989 N.C. App. LEXIS 671 (1989).

While attorney fees were proper for a prospective child support claim and for a claim for recovery reasonable and necessary medical expenses, they were erroneously imposed for a retroactive child support claim, which was not warranted by applicable law. Carson v. Carson, 199 N.C. App. 101, 680 S.E.2d 885, 2009 N.C. App. LEXIS 1378 (2009).

Reversal of Fee Award Where Increase in Support Reversed. —

Where that part of order increasing child support payments was reversed, the award of attorneys’ fees also had to be reversed. Mullen v. Mullen, 79 N.C. App. 627, 339 S.E.2d 838, 1986 N.C. App. LEXIS 2101 (1986).

Where both of plaintiff’s attorneys, who represented her in the custody and support hearings, submitted detailed affidavits of their experience, time, and preparation of the case, the trial judge properly found that an attorneys’ fee of $80.00 per hour for 75 and 10 hours of time respectively was a reasonable amount to award for time spent on the issue of support only. Savani v. Savani, 102 N.C. App. 496, 403 S.E.2d 900, 1991 N.C. App. LEXIS 464 (1991).

Trial Court Erred in Considering Relative Estates of Parties. —

Where the evidence failed to show that defendant did not have ample income to defry the expenses of the action and would have been required to deplete her estate to pay expenses, the trial court erred in considering the relative estates of the parties in assessing the defendant’s ability to employ “adequate” counsel. Van Every v. McGuire, 125 N.C. App. 578, 481 S.E.2d 377, 1997 N.C. App. LEXIS 116 (1997), modified, aff'd, 348 N.C. 58 , 497 S.E.2d 689, 1998 N.C. LEXIS 154 (1998).

Award of Fees Appropriate. —

The trial court did not err in requiring father to pay reasonable attorneys’ fees of mother in a habeas corpus proceeding to determine the custody of their minor children, where custody of the children had been awarded to mother by both North Carolina and South Carolina courts, and father’s failure to return the children to mother in South Carolina after a visit in this State forced mother to come to this State to secure their return, and father was not providing support for the children as he had been ordered. In re Hopper, 11 N.C. App. 611, 182 S.E.2d 228, 1971 N.C. App. LEXIS 1598 , cert. denied, 279 N.C. 726 , 184 S.E.2d 884, 1971 N.C. LEXIS 917 (1971).

Where district court found that defendant acted in good faith and could not defray the expenses of lawsuit without impoverishing herself, and the plaintiff had not furnished adequate support for several months, the findings were sufficient to support award of attorney’s fees. Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113, 1998 N.C. App. LEXIS 351 (1998).

Where father unilaterally terminated child support payments after his son reached the age of 18 and failed to make satisfactory progress towards graduation from high school, the support payments were improperly terminated and father was properly ordered to pay the mother’s attorney’s fees. Leak v. Leak, 129 N.C. App. 142, 497 S.E.2d 702, 1998 N.C. App. LEXIS 412 (1998).

Attorney fees were properly awarded to the father in a child custody case, where the trial court made factual findings as to the parties’ financial resources, that the father was an interested party acting in good faith, and as to father’s attorney’s skill, rates, and rendition of services. Cox v. Cox, 133 N.C. App. 221, 515 S.E.2d 61, 1999 N.C. App. LEXIS 405 (1999).

Trial court did not err in awarding attorney’s fees to plaintiff’s counsel where defendant had substantial assets, retirement and investment accounts, a home, an aircraft, a boat and a business, and plaintiff had a $41,000 income plus $2,000 in modest bank accounts. Burnett v. Wheeler, 133 N.C. App. 316, 515 S.E.2d 480, 1999 N.C. App. LEXIS 411 (1999).

Trial court could order the husband to pay the wife’s attorney’s fees incurred in seeking to have the husband held in contempt, even though he could not be held in civil contempt due to obeying the trial court’s orders prior to the contempt hearing, where the trial court found: (1) the wife was acting in good faith; (2) she had insufficient means to pay her attorney’s fees; and (3) the attorney’s fees were reasonable. Reynolds v. Reynolds, 147 N.C. App. 566, 557 S.E.2d 126, 2001 N.C. App. LEXIS 1231 (2001), rev'd, 356 N.C. 287 , 569 S.E.2d 645, 2002 N.C. LEXIS 937 (2002).

There was sufficient evidence to support the trial court’s finding of the wife’s inability to defray the cost of litigation in a divorce proceeding as she had been paying all of the uninsured medical expenses for the past two years and had outstanding balances on those expenses at the time of the hearing. Leary v. Leary, 152 N.C. App. 438, 567 S.E.2d 834, 2002 N.C. App. LEXIS 912 (2002).

In an action by a mother to modify a father’s child support pursuant to G.S. 50-13.7(a), the trial court properly granted attorney’s fees to the mother pursuant to G.S. 50-13.6 , because the trial court specifically found as a fact that the mother was a party acting in good faith to obtain reasonable support for her daughter, that the mother lacked sufficient means to pay her attorney fees, and that the father refused to provide support which was reasonable under the circumstances. Mason v. Erwin, 157 N.C. App. 284, 579 S.E.2d 120, 2003 N.C. App. LEXIS 641 (2003).

Order that the father pay attorneys’ fees was proper because the action involved both child custody and child support, and the trial court based its calculation on an extensive discussion with the mother’s counsel as well as careful consideration of the attorneys’ affidavit stating the number of hours he worked on the custody and support claims. Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678, 2005 N.C. App. LEXIS 260 (2005).

Attorney’s fee award in favor of the mother in a child custody and support action was proper because, inter alia, the affidavit and detailed billing records submitted in support of the request, along with the husband’s stipulation as to reasonableness of counsel’s hourly rate, supported the award. Attorney fee award was not used as punishment but was based upon mother’s insufficient means to defray expense of suit. Kuttner v. Kuttner, 193 N.C. App. 158, 666 S.E.2d 883, 2008 N.C. App. LEXIS 1760 (2008).

Trial court did not abuse its discretion in ordering the father to pay $40,000 of the maternal grandparents’ attorneys’ fee, where the fees were sought because of the father’s failure to cooperate with the grandparents regarding visitation, the father did not object to the evidence offered at trial, and the trial court found that the father had the ability to pay those fees. Smith v. Barbour, 195 N.C. App. 244, 671 S.E.2d 578, 2009 N.C. App. LEXIS 109 (2009).

Trial court properly awarded a wife attorneys’ fees under G.S. 50-13.6 following husband’s unsuccessful, frivolous motion for contempt alleging that the wife had failed to give notice of the weeks she intended to have visitation over the summer. Additionally, fees were appropriate because the wife proceeded in good faith and did not have sufficient means to defray the costs. Wiggins v. Bright, 198 N.C. App. 692, 679 S.E.2d 874, 2009 N.C. App. LEXIS 1338 (2009).

Entire amount of an arrearage claim and the attorney’s fees owed to dependent former spouse were domestic support obligations as defined in 11 U.S.C.S. § 101(14A), and thus were allowable under 11 U.S.C.S. § 502(b)(5), and entitled to first priority status, under 11 U.S.C. § 507(a)(1)(A). The attorney’s fees had been awarded under G.S. 50-13.6 , and the arrearage was allowed under 11 U.S.C.S. § 1322(b)(5). In re Peterson, 2012 Bankr. LEXIS 5540 (Bankr. E.D.N.C. Nov. 29, 2012).

Trial court properly awarded attorney’s fees to a former wife under the statute because its findings that the wife’s actions were filed in good faith and that she had insufficient means to defray the costs of her action were supported by the wife’s affidavits; the attorney’s fees provision in the separation agreement did not apply because there was no determination of a breach of the agreement or order for specific performance. Hennessey v. Duckworth, 231 N.C. App. 17, 752 S.E.2d 194, 2013 N.C. App. LEXIS 1247 (2013).

Wife was properly awarded attorney fees related to her successful child custody claim. Comstock v. Comstock, 240 N.C. App. 304, 771 S.E.2d 602, 2015 N.C. App. LEXIS 260 (2015).

Former wife was entitled to attorney’s fees because (1) the former wife filed a custody action in good faith, despite the former wife’s parental deficiencies, and (2) the former wife had insufficient means to defray suit costs, given the former wife’s income and lack of personal assets. Setzler v. Setzler, 244 N.C. App. 465, 781 S.E.2d 64, 2015 N.C. App. LEXIS 1034 (2015).

Father was properly ordered to pay a mother’s attorney’s fees because the trial court made statutorily required findings as well as findings of the reasonableness of the award. Summerville v. Summerville, 259 N.C. App. 228, 814 S.E.2d 887, 2018 N.C. App. LEXIS 405 (2018).

Order requiring a husband to pay a wife’s attorney’s fees was not an abuse of discretion because (1) the court properly relied on pleadings and the court record, including uncontested custody and support orders and a motion to continue, (2) disparity of financial resources was not a required consideration, and (3) detailed findings supported the conclusion that the wife was a dependent spouse with insufficient means to defray litigation costs. Beasley v. Beasley, 259 N.C. App. 735, 816 S.E.2d 866, 2018 N.C. App. LEXIS 561 (2018).

Award of attorney’s fees to a mother was appropriate because, although the parties settled their custody dispute by consent order in a manner more favorable to the father than to what the mother sought, the mother acted in good faith in defending against the father’s child custody and child support claims and in pursuing counterclaims. Moreover, because the father’s monthly income was several times more than the mother’s income, and the mother had recently declared bankruptcy, the mother had insufficient means to defray the expense of the suit. Conklin v. Conklin, 264 N.C. App. 142, 825 S.E.2d 678, 2019 N.C. App. LEXIS 189 (2019).

Since the award of attorney’s fees in a free order was not dependent upon the outcome of the contempt proceeding in the underlying custody action, a father’s appeal of the custody order did not divest the trial court of jurisdiction to enter the fee order granting a mother attorney’s fees; the trial court’s findings that the the mother acted in good faith and lacked sufficient means to defray the costs of litigation were sufficient to support the award of attorney’s fees. Blanchard v. Blanchard, 279 N.C. App. 269, 865 S.E.2d 686, 2021- NCCOA-487, 2021 N.C. App. LEXIS 519 (2021).

Award Within Discretion of Trial Court. —

Award of appellate attorney’s fees in matters of child custody and support, as well as alimony, is within discretion of trial court; this holding applies to any appeal of child custody or support order, whether order is interlocutory or final. McKinney v. McKinney, 228 N.C. App. 300, 745 S.E.2d 356, 2013 N.C. App. LEXIS 754 (2013).

Denial of Fees Upheld. —

Respondent in a child custody proceeding was not entitled to an award of counsel fees or to have court costs taxed against petitioner father, where respondent introduced no evidence with respect to her dependent status or inability to defray the expense of the suit, and where she was not the party for whom judgment had been given. In re Cox, 17 N.C. App. 687, 195 S.E.2d 132, 1973 N.C. App. LEXIS 1442 , cert. denied, 283 N.C. 585 , 196 S.E.2d 809, 1973 N.C. LEXIS 1011 (1973).

Where defendant complied with all orders that directed him to make child support payments, and when necessary defendant voluntarily made payments for the support of the parties’ children, it was not an abuse of discretion for the trial court to deny plaintiff’s motion for an award of attorneys’ fees. Prescott v. Prescott, 83 N.C. App. 254, 350 S.E.2d 116, 1986 N.C. App. LEXIS 2707 (1986).

Disallowance of Fees As Matter of Law Held Improper. —

The trial court, in its discretion, was fully authorized to disallow attorneys’ fees for defendant’s counsel, but to disallow such fees as a matter of law was error. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177, 1971 N.C. App. LEXIS 1650 (1971).

Entitlement to Legal Representation Not Limited to Trial Level. —

There is nothing in our statutory or case law to suggest that a dependent spouse in this State is entitled to meet the supporting spouse on equal footing, in terms of adequate and suitable legal representation, at the trial level only. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787, 1981 N.C. App. LEXIS 2604 (1981).

Award of attorneys’ fees for services performed on appeal should ordinarily be granted, provided the general statutory requirements for such an award are duly met, especially where the appeal is taken by the supporting spouse. Fungaroli v. Fungaroli, 53 N.C. App. 270, 280 S.E.2d 787, 1981 N.C. App. LEXIS 2604 (1981).

Award of Fees by Appellate Court. —

Neither this section nor any other statute authorizes an appellate court to make an award of attorneys’ fees. Tilley v. Tilley, 30 N.C. App. 581, 227 S.E.2d 640, 1976 N.C. App. LEXIS 2307 (1976).

Distinction Between Taxing Fees as Costs and Ordering Payment. —

As to the difference between including attorney fees in the costs taxed against a party to a lawsuit and in ordering the payment of attorneys’ fees, see Smith v. Price, 315 N.C. 523 , 340 S.E.2d 408, 1986 N.C. LEXIS 1905 (1986).

A request for attorneys’ fees may be properly raised by a motion in the cause subsequent to the determination of the main custody action. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, 1986 N.C. App. LEXIS 2342 (1986).

Time for Motion. —

Where intervenors’ motion for attorneys’ fees was made approximately four months after the trial court had entered order awarding custody to the intervenors, and approximately four months after county division of social services had filed its notice of appeal to that order, the trial court lacked jurisdiction to consider the intervenors’ motion. However, following resolution of the appeal of the custody order, the trial court could consider intervenors’ motion for attorneys’ fees. In re Scearce, 81 N.C. App. 662, 345 S.E.2d 411, 1986 N.C. App. LEXIS 2342 (1986).

Reservation of Issue of Fees when Judgment Rendered. —

Since the trial court expressly reserved the issue of attorney’s fees at the time it rendered judgment as to the custody matters before it, it retained the authority to consider the issue since attorney’s fees were within the court’s “oral announcements.” Surles v. Surles, 113 N.C. App. 32, 437 S.E.2d 661, 1993 N.C. App. LEXIS 1298 (1993).

Review of Attorney’s Fees on Appeal. —

While whether the statutory requirements have been met is a question of law, reviewable on appeal, the amount of attorneys’ fees is within the sound discretion of the trial judge and is only reviewable for an abuse of discretion. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47, 1985 N.C. App. LEXIS 3441 (1985).

The findings required by this section must be supported by competent evidence and are fully reviewable on appeal. Boyd v. Boyd, 81 N.C. App. 71, 343 S.E.2d 581, 1986 N.C. App. LEXIS 2264 (1986).

The trial court committed error in failing to make adequate findings of fact to support its denial of attorney’s fees. Gowing v. Gowing, 111 N.C. App. 613, 432 S.E.2d 911, 1993 N.C. App. LEXIS 861 (1993).

Judicial Notice of Rates of Local Attorneys. —

Denial of a mother’s motion for attorney fees was error because, contrary to the trial court’s finding, it was not barred from taking judicial notice of customary rates of local attorneys under G.S. 8C-1-201(b); trial court’s belief that it lacked authority to apply judicial notice was instrumental in its decision. Simpson v. Simpson, 209 N.C. App. 320, 703 S.E.2d 890, 2011 N.C. App. LEXIS 67 (2011).