273 N.C. 319 | N.C. | 1968
During the pendency of this action, the two older children attained their majority. The present status of Doris S. Gray in this action is twofold, that is, as mother and also as next friend of the two minor children, April Gray (18) and Mary Tor-rence Gray (15).
The record indicates the provisions of the separation agreement of February 25, 1955, including the provision that Doris S. Gray was to have sole and exclusive custody of the four minor children and provide a home for them, were incorporated in the judgment entered herein by Pless, J., in October, 1958; and that, as contemplated, the children during minority have made their home with the mother. The record contains no order providing for a change in respect of the custody of April. Nor does it appear that April has left or has attempted to leave the home in which she has resided with her mother and sister.
Even if we assume April’s college expenses will be provided for by her own earnings and by contributions made by her father directly to April or directly in payment of college expenses, as long as she is in the custody of her mother and makes her home with her mother and sister provision must be made for her support there, whether her actual residence there be occasional or continuous. Moreover, if there is to be a reduction in the amount defendant is required to pay for April’s support when in the home with her mother
It appears affirmatively that Judge McLean’s order was entered under the apprehension that defendant was “not longer responsible” for the “upkeep” of April after she attained “the age of eighteen years.” This explains comments and findings in his order apparently based on informal conversations with April and with defendant. However, we are of opinion, and so decide, that Judge McLean’s order in this respect is based on a misapprehension of the applicable law.
In Wells v. Wells, 227 N.C. 614, 44 S.E. 2d 31, Winborne, J., (later C.J.), for this Court, stated: “Ordinarily a child, in the eyes of the law, is in a condition to provide for his own maintenance when he has reached the age of twenty-one years, that is, has attained the status of majority. That age was arbitrarily fixed at common law for the termination of the child’s minority, and the attainment of his majority, and the rule has remained in force throughout the United States.” Quoting further from the opinion in Wells: “Hence, we hold that ordinarily the law presumes that when a child reaches the age of twenty-one years he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates.” The precise holding in Wells was that a father is under legal obligation to continue to provide necessary support to his son after he reaches the age of twenty-one years when prior thereto and thereafter the son is insolvent, unmarried and incapable, mentally and physically, or earning a livelihood.
Citing Wells, Rodman, J., in Ford v. Bank, 249 N.C. 141, 105 S.E. 2d 421, states: “While a parent is under a legal as well as a moral obligation to support his minor children, that obligation normally terminates when the child reaches his majority and ceases to be dependent.” In North Carolina, a child attains his or her majority when he or she reaches the age of twenty-one years. 3 Lee, North Carolina Family Law, § 229, p. 60.
In the recent case of Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77, the lower court, without making findings of fact as a basis for its order, vacated a prior order which required the father to pay $25.00 per week to the mother for the support of their nineteen-year-old daughter until she became twenty-one years old. The order was vacated by this Court and the cause remanded “for more detailed findings of fact.” Underlying decision is the rule that ordinarily a father’s obligation and responsibility for the support of his daughter
For the reasons stated, there was error in the portion of Judge McLean’s order relating to the support of April.
With reference to the support of Mary Torrence, Judge McLean’s order expressly states no evidence had been offered as to her specific needs. The order provided that if either party were dissatisfied on February 2, 1968, with this portion of the order, a further hearing would be conducted to “review the income of the defendant at that time” and the needs of Mary Torrence.
It seems appropriate to say there was evidence before Judge McLean sufficient to support his finding that defendant’s income had “materially changed” between May 5, 1967, the date of Judge Riddle’s judgment, and September 6,- 1967, the date of Judge McLean’s order. However, since the order as to April was entered under a misapprehension of the applicable law, and the order as to Mary Torrence was tentative and subject to full review in February, 1968, it seems appropriate that Judge McLean’s order of September 6, 1967, be va-r cated in its entirety and that the cause be remanded for a hearing de novo on the motion filed by defendant on August 11, 1967, for modification of the judgment entered by Judge Riddle on May 5, 1967. It is so ordered.
Error and remanded.
