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Posted in Child Support on 22nd January 2011

North Carolina Divorce Child Support Award Grounds Custody Lawyers Attorneys

SHARON LYNN WOLFE, Plaintiff v. RONALD CHARLES WOLFE, Defendant v. JAMES THOMAS SUGG, II, Additional Party Defendant
COURT OF APPEALS OF NORTH CAROLINA
September 1, 1983, Heard in the Court of Appeals
October 4, 1983, Filed

Plaintiff-wife and defendant-husband separated in November, 1980. Plaintiff moved into a nearby apartment with additional party defendant James Thomas Sugg, and was retaining custody of the two minor children of the marriage.  Soon thereafter, plaintiff filed suit seeking, among other relief, divorce from defendant and custody of the children. A hearing was held,in which custody of both children was awarded to defendant. Plaintiff failed to surrender custody of the children. In December, 1981, plaintiff and defendant reached an agreement. Accordingly plaintiff delivered custody of the children to defendant. The case for child custody and divorce was heard and the order awarded custody of both children to defendant and among other things Sugg was joined as an additional party defendant and plaintiff was ordered to pay child support, ordered plaintiff to pay $ 300.00 per month in child support, sequestered the family home for use by defendant and the children; made provision for some marital property division; ordered visitation by plaintiff on each Tuesday and alternate weekends, on the condition that plaintiff post a $ 3000.00 bond, secured by her interest in the marital home, and ordered that failure to comply with terms of the visitation order would result in forfeiture of the bond, without notice or hearing. The order was appealed by plaintiff and additional party defendant.

Issues:

Whether the trial court erred in joining an additional defendant and was without power to enter orders concerning the additional defendant?
Whether the trial court erred in awarding child support to the father?
Whether the trial court’s failure to find facts about a child’s preference concerning custody was ground for reversing an award of custody?

Discussion:

This court held that the trial court erred in joining an additional defendant and was without power to enter orders concerning the additional defendant. Sugg was purportedly brought into the suit pursuant to the motion of defendant. Under G.S. 1A-1, Rule 14 of the Rules of Civil Procedure, a defendant may bring in an additional party who “is or may be liable to (defendant) for all or part of the plaintiff’s claims against him.” Rule 14(a). Clearly, Sugg could not possibly be liable to defendant for any of plaintiff’s claims against defendant for child custody or child support. This court held that the trial court erred in making Sugg a party and was without power to enter orders concerning Sugg.  The court further held that the trial court erred in awarding child support to the father because the trial court made no findings concerning the relative abilities of the mother and father to pay child support; Before awarding childsupport, a trial court must consider the “reasonable needs of the child and . . . relative ability of the parties to provide that amount and estates, earnings, conditions, and accustomed standard of living.” The trial court below had made no findings concerning the relative abilities of the defendant and plaintiff to pay child support and this requires that the support portion of the order be reversed.

This court held that the trial court’s failure to find facts about a child’s preference concerning custody was not grounds for reversing an award of custody and the trial court in the case permitted both children to testify concerning custody.  The trial court was not bound by this testimony, however, and could assign what weight it chose to the children’s stated preferences. Furthermore, it is well established that a court’s failure to find facts as to a child’s preference concerning custody is not grounds for reversing an award of custody. And since the Plaintiff failed to show a substantial change of circumstances affecting the welfare of the children had occurred since December, 1980, the custody of the children will remain with the defendant.

Conclusion:

This court reverses the trial court’s orders joining Sugg as an additional party, providing for foreclosure of plaintiff’s property interests in the marital home, requiring payment of $ 300.00 per month in child support and retention of exclusive jurisdiction.  As to the trial court’s award of custody of the children to defendant, and sequestration of the marital home, this court affirms that part.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

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