225 S.E.2d 143 | N.C. Ct. App. | 1976
Gloria Grady HEMBY
v.
Paul C. HEMBY, III.
Court of Appeals of North Carolina.
*144 Turner & Harrison by Fred W. Harrison, Kinston, for plaintiff-appellant.
White, Allen, Hooten & Hines, P.A., by John R. Hooten, Kinston, for defendant-appellee.
BRITT, Judge.
Plaintiff contends that the trial court erred in finding and concluding that there had been a substantial change in conditions and relieving defendant of the obligation of making mortgage payments on, and repairs to, the home. We think the contention has merit.
Since the trial court's findings indicated only a slight change in defendant's income, it appears that the court was influenced by the considerable increase in defendant's living expenses. For example, the court found that in 1973 defendant's monthly expense *145 for food was $90; in 1975 it was $250. In 1973 defendant's monthly expense for utilities was $19; in 1975 it was $70. Obviously, a large part of the increase in defendant's living expense was due to the additional expense of his new wife and her child.
In Sayland v. Sayland, 267 N.C. 378, 383, 148 S.E.2d 218, 222 (1968), we find: "Payment of alimony may not be avoided merely because it has become burdensome, or because the husband has remarried and voluntarily assumed additional obligations. (Citations.) . ." The principles declared in Sayland would apply with equal force to a motion seeking to vacate or modify an order for child support. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). See also 2 R. Lee, North Carolina Family Law, § 156.
The order appealed from is vacated and this cause is remanded for further proceedings. Upon a further determination of defendant's motion for a modification of the consent judgment, the trial court will not consider defendant's additional living expenses caused by his remarriage.
Although defendant did not appeal from the order under review, he contends that the consent judgment is a nullity for the reason that no summons was issued and no pleadings were filed in the action. We find no merit in this contention.
The record on appeal is contradictory on the point raised by defendant. While the first page of the record indicates that no summons was issued and no complaint or answer was filed, the order appealed from contains a finding of fact that the action was instituted on 29 August 1973 "by the issuance of a summons".
Assuming, arguendo, that no summons was issued or no complaint or answer filed, we think defendant is still bound by the consent judgment. While jurisdiction may not be conferred upon a court by waiver or consent of the parties, where the court has jurisdiction of the subject of the action and the parties are before the court, objections as to the manner in which the court obtained jurisdiction of the person or to mere informalities in the procedure or judgment may be waived, and a party may be estopped to attack the judgment on such grounds by failure to object in apt time and by acquiescence in the judgment after rendition. Pulley v. Pulley, 255 N.C. 423, 121 S.E.2d 876 (1961). We think the instant case is governed by the stated principle of law.
Order vacated and cause remanded.
VAUGHN and ARNOLD, JJ., concur.
