Roberts v. Roberts, 265 N.C. 600 (1965)

Nov. 10, 1965 · Supreme Court of North Carolina

265 N.C. 600

FRANCES QUEEN ROBERTS v. LOYAL OWEN ROBERTS.

(Filed 10 November, 1965.)

Appeal by defendant from order entered February 6, 1965 by Walter E. Johnston, Jr., Resident Judge, in an action pending in For-syth Superior Court.

This action was instituted December 6, 1961, for divorce from bed and board, custody of minor children and attorney’s fee.

Plaintiff and defendant were married on or about September 7, 1949. Three children were born of the marriage, Sharon Joan, Vicki Lynn and Allen Robin.

After hearing, an order was entered by Johnston, J., on December 27, 1961, in which plaintiff was awarded full custody and control of said minor children and defendant was ordered to pay $30.00 per week for the support of plaintiff and of said children and a fee to plaintiff’s counsel.

Subsequently, in the Superior Court of Wilkes County, ■ defendant obtained an absolute divorce on the ground of two years separation.

On January 29, 1965, plaintiff filed a motion that the court order defendant to pay $50.00 per week for the support of said three children; to pay designated medical and hospital bills incurred in behalf of one or more of said children; and to reimburse the First Federal Savings and Loan Association on account of its payment of delinquent taxes on the residence property originally owned by plaintiff and defendant as tenants by entirety and in which plaintiff and said three children reside.

On February 6, 1965, after a hearing on plaintiff’s motion, defendant’s answer thereto and affidavits, Johnston, J., based on findings of fact set forth therein, entered an order providing:

“Now THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the weekly support payments heretofore ordered to be paid by the defendant for the support of the three minor children of the marriage be increased from $30.00 per week to $45.00 per week, said payments to be made each week on or before Friday of each week, beginning on the 12th day of February 1965, and continuing each and every Friday thereafter until further ordered by this Court, for the use and benefit of Sharon Joan Roberts, Vicki Lynn Roberts, and Allen Robin Roberts; that the defendant pay H. Glenn Pettyjohn, Attorney for the petitioner and said minor children, the sum of $125.00; and that the costs of this action be taxed by the Clerk against the defendant.”

Defendant excepted to said order and to specified findings of fact set forth therein and appealed.

H. Glenn Pettyjohn for plaintiff appellee.

H. Grady Barnhill, Jr. and John E. Hall for defendant appellant.

Per Curiam.

There is no contention that, in relation to the needs of the children, the amount of the required payments is excessive. The findings challenged by defendant relate to defendant’s ability to make such payments. However, in our view, the evidence was sufficient to support each of the challenged findings of fact; and the findings of fact fully support the judgment.

It is noted that the cause is open for furl her orders. If conditions warrant modification of the ordm of February 6, 1965, plaintiff or defendant is at liberty to move lor such modification.

Affirmed.