Carpenter v. Carpenter
212 S.E.2d 911
N.C. Ct. App.
1975
Check Treatment
PARKER, Judge.

The question presented is whether the contractual obligations which plaintiff undertook when he entered into the separation agreement as amended on 22 May 1969 to make monthly support payments for the benefit of his children and to contribute toward their educational expenses terminated by operation of law as to each child becoming 18 years of age by reason of the enactment of G.S. Chap. 48A effective 5 July 1971 which lowered the age of majority from 21 to 18 years of age. We hold that they did not.

A parent can by contract assume an obligation to his child greater than the law otherwise imposes, Mullen v. Sawyer, 277 N.C. 623, 178 S.E. 2d 425 (1971), and by contract bind himself to support his child after emancipation and past majority. Church v. Hancock, 261 N.C. 764, 136 S.E. 2d 81 (1964). Such was the case here. By contract with the defendant, the plaintiff bound himself to make undiminished monthly support payments for his children, the amount of the payments to be reduced “as each child completes his or her undergraduate college education.” So long as a child was engaged in that endeavor no limitation of age or time was imposed. Only in the event a child should not be enrolled in an undergraduate college was provision made for reduction in the monthly support payments as such child reached twenty-one or was emancipated. Clearly, the parties contemplated that a child might not complete his undergraduate education and might remain enrolled after becoming emancipated and that in such event plaintiff’s obligation to make undiminished support payments would continue.

Shoaf v. Shoaf, 282 N.C. 287, 192 S.E. 2d 299 (1972), cited and relied on by plaintiff, is distinguishable on its facts and is not here controlling. The consent, order involved in that case by its own provisions imposed no obligation- to furnish support beyond the date the child reached his majority or was otherwise *239 emancipated. See opinion of Morris, Judge, in White v. White, 25 N.C. App. 150, 212 S.E. 2d 511 (1975).

We note that when Judge Horton entered the order in the present case dated 29 August 1972, David, the oldest child, was already 18 years old and G.S. Chap. 48A was then in effect. The plaintiff made no contention at that time that his son’s reaching majority relieved him of all further obligation to provide for his son’s support and education. Judge Horton’s order, which provided among other things that plaintiff continue to make support and educational payments for the benefit of his 18-year-old son, became the law of this case upon the dismissal of plaintiff’s appeal therefrom. Furthermore, when in September 1973 plaintiff unilaterally reduced the monthly support payments for his children, he still did not contend he had a right to do so because David was no longer a minor, but contended only that his own changed financial circumstances made the reduction necessary. It was not until 5 June 1974, when his motion came on for hearing, that plaintiff for the first time contended that his obligations toward any of his children terminated as each became 18. His own prior conduct clearly demonstrates that he had theretofore otherwise understood the nature of his contractual obligations for the benefit of his children and that he had long recognized that these obligations might continue without regard to the time any child should attain majority. Plaintiff’s own prior conduct is consistent with the construction which we place upon his contract.

In the second and third arguments set forth in plaintiff’s brief on this appeal, plaintiff contends that under the equal protection clause of the Fourteenth Amendment to the United States Constitution and under Article IX, Section 3 of the North Carolina Constitution, he may not be required to provide funds for his children to attend private schools. The record does not indicate that these constitutional contentions were raised or passed upon in the trial court, and as a general rule an appellate court will not pass upon a constitutional question which was not raised and considered in the court from which appeal was taken. Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E. 2d 435 (1971). Moreover, we find plaintiff’s arguments unpersuasive. Article IX, Section 3 of our State Constitution directs that “[t]he General Assembly shall provide that every child of appropriate age and of sufficient mental and physical ability shall attend the public schools, unless educated by other *240 means.” Here, obviously, the children are being educated by other means. Neither is there any denial of equal protection in requiring a father to pay for his children’s educations at a private school. Plaintiff agreed in the separation agreement that defendant should have “the custody, care and control” of the three children, and in general the custodian is the one to decide the extent and the place of the education of the child beyond that which is provided by the public school system, subject to the approval of the court in cases where the father is required by the court to pay therefor. Zande v. Zande, 3 N.C. App. 149, 164 S.E. 2d 523 (1968) ; see Annot., 36 A.L.R. 3d 1093. Here, the order of Judge Horton dated 29 August 1972 expressly found that the children’s attendance at private schools was in their best interest. As above noted, plaintiff failed to perfect his appeal from that order.

Plaintiff contends that the order of Judge Allen now appealed from demonstrates a “gross abuse of discretion” in failing to find a substantial change of circumstances in regard to plaintiff’s earning capacity such as to entitle him to the relief sought in his motion. We do not agree. The evidence discloses and Judge Allen found as facts that plaintiff is a medical doctor who, prior to September 1973, received $7,000.00 per month for medical services rendered to three hospitals, that plaintiff’s contracts with the hospitals terminated in September 1973 and he thereafter engaged in private practice through a professional association of which he was the sole owner, that his adjusted gross income for 1972 was in excess of $75,000.00 and for 1973 was in excess of $52,000.00, and that the total income of the professional association for March, April and May 1974, was $15,012.00. No exception was taken to any of the foregoing findings. Plaintiff had the burden of showing a change in circumstances sufficient to warrant Judge Allen’s modifying the order previously entered by Judge Horton. Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). Plaintiff failed to carry that burden and we find no merit in plaintiff’s present contention that Judge Allen abused his discretion.

Finally, plaintiff assigns error to the portion of the order appealed from which directed him to pay a fee to the defendant’s attorneys. In this connection plaintiff does not contest the amount of the fee allowed but contends only that as a matter of law he should not be required to pay any fee. We do not agree. By his own actions in unilaterally reducing the support payments *241 for the children and by filing his motion in the cause, plaintiff forced defendant to employ counsel to secure for their children the support and educational benefits to which they were entitled. Plaintiff cannot now justly complain at being required to assist in the payment of defendant’s necessary counsel fees. Teague v. Teague, 272 N.C. 134, 157 S.E. 2d 649 (1967) ; Andrews v. Andrews, 12 N.C. App. 410, 183 S.E. 2d 843 (1971) ; see Shore v. Shore, 15 N.C. App. 629, 190 S.E. 2d 666 (1972).

The order appealed from is

Affirmed.

Judges Morris and Hedrick concur.