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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NONA DAVIS YOUNG (LINDQUIST), Plaintiff, v.
STEVEN PAUL YOUNG
Defendant, v. ALVIN YOUNG and SHARON YOUNG, Defendants-
Filed: 15 March 2005
1. Child Support, Custody, and Visitation; Contempt--civil contempt--failure to comply
with visitation order granting rights to grandparents
The trial court did not err by finding plaintiff mother in willful civil contempt for failing to
comply with the terms of a consent order concerning the visitation rights of her minor daughter's
paternal grandparents, because: (1) plaintiff did not dispute that the pertinent consent order
granted the grandparents visitation rights and plaintiff confirmed that the grandparents had
exercised their right to visitation since a 1997 order which first granted that right; (2) in a letter
dated 6 May 2003, plaintiff wrote to inform the grandparents that she would not make the minor
child go with the grandparents for a week in the future; (3) on 11 June 2003, plaintiff sent the
grandparents another letter informing them that she was making the child unavailable for
visitation by taking her to Hawaii; (4) while plaintiff knew on 1 May 2003 that she and the child
would be going to Hawaii, she did not contact the grandparents about their travel plans until the
day of their departure; (5) plaintiff's 11 June 2003 letter postdated the grandparents' request to
make the child available for visitation beginning 13 July, as well as defendant father's motion for
contempt for failure to make the child available for visitation; and (6) there was competent
evidence that plaintiff willfully, i.e., knowingly and stubbornly, violated the consent order.
2. Child Support, Custody, and Visitation--agreement between parties incorporated into
order-_improper limitation on authority of court
The trial court erred by including in its order a provision based upon the parties' agreement
at the hearing that precluded plaintiff mother from seeking an increase in child support from
defendant father based upon an increase in defendant's income, reduction in defendant's income,
or reduction in the time that defendant is allotted for summer visitation within two years, and the
provision is deemed void because: (1) neither party may preclude the courts of this State from
evaluating whether circumstances, which may include though may not be limited to an increase
in defendant's income, warrant an increase in support, (2) an increase in defendant's income may
properly be considered as a factor in determining whether support should be increased and the
courts of this State cannot be precluded from protecting a child's best interest; (3) the provision
precluding plaintiff from seeking an increase based upon a reduction in defendant's income is
superfluous as a decrease in a support payor's income may warrant a decrease and not an
increase in support; and (4) while a reduction in visitation may constitute a changed
circumstance warranting a support modification, the courts cannot sua sponte modify support,
and courts cannot be precluded from protecting a child's best interest.
3. Child Support, Custody, and Visitation--equal access to records of minor child
The trial court did not err in a child support and visitation case by including in its order
matters that were allegedly not before the court, including the parties' agreement that plaintiffmother share with defendant father all school and medical records of the minor child and copies
of all school records, that defendant be notified prior to medical appointments of the child unless
it is an emergency, that the parties inform one another of the physical address where they reside
and a current telephone number, and that plaintiff provide defendant with copies of all order
forms for defendant to purchase school pictures of the child, because those portions of the order
were within the purview of the provision of N.C.G.S. § 50-13.2(b) stating that each parent shall
have equal access to the records of the minor child involving the health, education, and welfare
of the child.
4. Appeal and Error--preservation of issues--clerical errors--failure to object
The trial court did not err in a child support and visitation case by omitting from its order
matters that were addressed before the court such as the partial omission of the time of day when
the minor child would be picked up for visitation, because: (1) nothing indicated that plaintiff
objected to this omission or made any motion to add the visitation pick-up time to the order prior
to its entry, and in fact plaintiff through her attorney approved the form and signed off on the
order; (2) N.C.G.S. § 1A-1, Rule 60 addresses clerical mistakes and provides that trial courts
may correct mistakes or omissions even during the pendency of an appeal either before the
appeal is docketed or thereafter with leave of the appellate division, and nothing indicated that
plaintiff petitioned the trial court to correct the order during the pendency of this appeal; and (3)
plaintiff's failure to object or make any motion to add the visitation pick-up time to the order, as
well as her explicit approval of what she now contends is a clerical error, means plaintiff failed
to preserve this issue for appeal.
Judge TYSON concurring in part and dissenting in part.
Appeal by Plaintiff from order entered 8 October 2003 by Judge
Dougald N. Clark, Jr. in District Court, Cumberland County. Heard
in the Court of Appeals 7 December 2004.
Dale S. Morrison, for plaintiff-appellant.
Mitchell, Brewer, Richardson, Adams, Burge & Boughman, by
Ronnie M. Mitchell and H. Lee Boughman, Jr., for defendant-
Sullivan & Grace, P.A., Nancy L. Grace, for defendant-
Plaintiff, Nona Davis Young Lindquist, asserts in this appeal
that the trial court erred by: (1) finding her in willful civilcontempt for failing to comply with the terms of a Consent Order
concerning the visitation rights of her minor daughter's paternal
grandparents, Alvin and Sharon Young; (2) precluding her from
seeking an increase in child support from the child's father,
Steven Paul Young, based upon certain conditions; (3) including in
its order matters not before the court; and (4) omitting from its
order matters addressed before the court. After careful review,
we affirm in part and vacate in part the order of the trial court.
The underlying facts tend to show that following their divorce
in 1999, Lindquist and Young consented to an Order entered in
Cumberland County, North Carolina providing for joint custody of
their daughter, Shaughnessy, with primary custody to Lindquist.
The Order entitled Young to six weeks of visitation with
Shaughnessy every summer and grante
d the paternal grandparents, who
live in Minnesota, one week of visitation per year.
eventually moved with Shaughnessy
to Ohio, where she works a
On 6 May 2003, Lindquist wrote letters to Young and the
grandparents, informing them that Shaughnessy did not wish to visit
with them for any extended period of time and that Lindquist was
therefore not going to make Shaughnessy visit with them. The
record on appeal shows that a few days earlier, on 1 May 2003,
Lindquist learned that she had been selected for a summer teaching
position in Hawaii. According to her own testimony, on 11 June
2003, the day of Shaughnessy's and her departure for Hawaii,Lindquist sent letters to Young and the grandparents regarding
their impending travels to Hawaii.
(See footnote 1)
Lindquist's letter postdated
Young's motion for contempt for Lindquist's failure to make
Shaughnessy available for visitation and the grandparents' request
for visitation to begin 13 July 2003.
On 28 July 2003, the trial court held a hearing on the
contempt motions. During the hearing, Lindquist reached an
agreement with Young to dismiss his contempt motion
. There was no
such resolution with the grandparents, whose motion was granted by
the trial court.
Lindquist appeals from that order.
 On appeal, Lindquist first asserts that the trial court
erred in holding that she was in willful civil contempt for failing
to comply with the terms of the Consent Order concerning the
grandparents' visitation rights. We disagree.
In contempt proceedings the judge's findings of fact are
conclusive on appeal when supported by any competent evidence and
are reviewable only for the purpose of passing on their sufficiency
to warrant the judgment.
Clark v. Clark, 294 N.C. 554, 571, 243
S.E.2d 129, 139 (1978). Under North Carolina law,
Failure to comply with an order of a court is a
continuing civil contempt as long as:
(1) The order remains in force; (2) The purpose of the order may still be
served by compliance with the order;
(2a) The noncompliance by the person to whom
the order is directed is willful; and
(3) The person to whom the order is directed
is able to comply with the order or is able to
take reasonable measures that would enable the
person to comply with the order.
N.C. Gen. Stat. § 5A-21(a) (2003). Our courts define willful as
with knowledge and a stubborn resistance. Mauney v. Mauney, 268
N.C. 254, 268, 150 S.E.2d 391, 393 (1966); Clayton v. Clayton, 54
N.C. App. 612, 615, 284 S.E.2d 125, 127 (1981) (stating that
willfully implies that the act was done knowingly and of stubborn
purpose.). Willfulness implicates more than deliberation or
conscious choice; it also imports a bad faith disregard for
authority and the law. Forte v. Forte, 65 N.C. App. 615, 616, 309
S.E.2d 729, 730 (1983).
Here, the trial court made the findings required for contempt:
8. On the 22nd day of September, 1999, a Consent
Order was entered by this Court, [by] the terms of
which, [the paternal grandparents] were granted
visitation privileges with the minor child for
seven days during  each summer upon thirty days
advance notice and that said Order is still in
force and effect and the purpose of said Order may
still be served by compliance with the same.
* * *
17. That Plaintiff has had the ability to comply
with the visitation Order involving [the paternal
but has willfully failed and refused
to do so.
The record reveals that competent evidence supported these
findings. At the 28 July 2003 hearing, Lindquist did not dispute
that the Consent Order granting the grandparents visitation rightswas in effect. Indeed, Lindquist confirmed that the grandparents
had exercised their right to visitation since a 1997 order, which
first granted that right, took effect. Nevertheless, in a letter
dated 6 May 2003, Lindquist wrote to inform the grandparents that
she will not make Shaughnessy go with you for a week in the
future. On 11 June 2003, Lindquist sent the grandparents another
letter, informing them that she was making Shaughnessy unavailable
for visitation by taking her to Hawaii. While Lindquist knew on 1
May 2003 that she and Shaughnessy would be going to Hawaii, she did
not contact the grandparents about their travel plans until the day
of their departure. Moreover, Lindquist's 11 June 2003 letter
postdated the grandparents' request to make Shaughnessy available
for visitation beginning 13 July, as well as Young's motion for
contempt for failure to make Shaughnessy
available for visitation.
These and other facts reflected in the record constitute competent
evidence to support the trial court's finding that Lindquist was in
willful civil contempt for failing to allow Shaughnessy's
grandparents to exercise their visitation rights.
Lindquist relies heavily on Hancock v. Hancock, 122 N.C. App.
518, 471 S.E.2d 415 (1996), and Ruth v. Ruth, 158 N.C. App. 123,
579 S.E.2d 909 (2003), to support her argument that the trial court
erred in finding her in contempt. These cases are, however, easily
distinguishable. In Hancock, we found that:
Nowhere in the record do we find evidence that plaintiff
acted purposefully and deliberately or with knowledge and
stubborn resistance to prevent defendant's visitation
with the child. The evidence shows plaintiff prepared thechild to go, encouraged him to visit with his father, and
told him he had to go. The child simply refused.
Plaintiff did everything possible short of using physical
force or a threat of punishment to make the child go with
Hancock, 122 N.C. App. at 525, 471 S.E.2d at 419. The same cannot
be said here, where there is competent evidence, discussed above,
supporting the trial court's conclusion that Lindquist willfully,
i.e., knowingly and stubbornly, violated the Consent Order granting
the grandparents visitation rights.
In Ruth, we reversed a finding of contempt where the alleged
contemnor fully complied with the relevant court order prior to the
hearing on the motion to show cause regarding contempt. We held
that a district court does not have the authority to impose civil
contempt after an individual has complied with a court order, even
if the compliance occurs after the party is served with a motion to
show cause why he should not be held in contempt of court. Ruth,
158 N.C. App. at 126, 579 S.E.2d at 912 (citation omitted). Here,
in contrast, the grandparents had not yet had their visitation, and
Lindquist was not in compliance with the prior court order, at the
time of the hearing. Ruth is therefore also inapplicable.
Accordingly, we uphold the trial court's finding that
Lindquist was in willful civil contempt for failing to allow
Shaughnessy's grandparents to exercise their visitation rights
 Lindquist next contends that the trial court erred by
including in its order a provision to which she and Young hadagreed at the hearing: that Lindquist will not file a motion to
increase child support based upon an increase in [Young's] income,
reduction in [Young's] income or reduction in the time that [Young]
is allotted for summer visitation within two years.
(See footnote 2)
(See footnote 3)
Under North Carolina General Statute section 50-13.7(a), [a]n
order of a court of this State for support of a minor child may be
modified or vacated at any time, upon motion in the cause and a
showing of changed circumstances. N.C. Gen. Stat. § 50-13.7(a)
(2003); Crutchley v. Crutchley
, 306 N.C. 518, 524-25, 293 S.E.2d
793, 797-98 (1982) ([A] court order pertaining to custody or
support of a minor child . . . may be modified or vacated at any
time, upon motion in the cause and a showing of changed
circumstances[.]) (quotation and citations omitted). A court may
not sua sponte
modify an existing support order; modification may
occur only upon motion and a showing of changed circumstances by an
interested party. Royall v. Sawyer
, 120 N.C. App. 880, 882, 463
S.E.2d 578, 579-80 (1995). Increased income alone does not constitute changed
[i]t is well established that an increase
in child support is improper if based solely upon the ground that
the support payor's income has increased
. Thomas v. Thomas
N.C. App. 591, 594, 518 S.E.2d 513, 515 (1999) (citing Greer v.
, 101 N.C. App. 351, 355, 399 S.E.2d 399, 402 (1991) (stating
that [w]ithout evidence of any change of circumstances affecting
the welfare of the child or an increase in need . . . an increase
for support based solely on the ground that the support payor's
income has increased is improper); Fuchs v. Fuchs
, 260 N.C. 635,
133 S.E.2d 487 (1963) (holding that an increase in support was not
warranted in the absence of evidence of changed circumstances,
particularly where the increase was sought solely on the ground
that the payor's income had increased)). Because an increase in
child support may not be based solely on an increase in the payor's
income, were Lindquist to file a motion to increase Young's support
obligation solely because of an increase in Young's income, such
motion would necessarily fail. The provision at issue is therefore
superfluous under these circumstances.
However, a non-custodial parent's increased income is properly
considered as a factor in determining whether changed circumstances
increase in child support exist. See, e.g., Gibson
, 24 N.C. App. 520, 523, 211 S.E.2d 522, 524 (1975) (an
increase in support was properly justified by a showing of
increased support costs and substantially increased spendableincome of the payor); Roberts v. Roberts
, 38 N.C. App. 295, 301-02,
248 S.E.2d 85, 89 (1978) (non-custodial parent's ability to pay
support, as well as custodial parent's inability to provide an
adequate standard of living for herself and the child, were
properly considered as factors in determining support obligations);
, 134 N.C. App. at 596, 518 S.E.2d at 516-17 (where the
sole ground cited for increased support was an increase in the
payor's income, the case was remanded to the trial court for
further findings as to whether any change in the children's needs
or circumstances affecting their welfare existed).
Neither Lindquist nor Young may preclude the courts of this
State from evaluating whether circumstances, which may include
(though may not be limited to) an increase in Young's income,
warranting an increase in support exist. Indeed,
[N]o agreement or contract between husband and wife
will serve to deprive the courts of their . . .
authority to protect the interests and provide for
the welfare of [children]. They may bind
themselves by a separation agreement or by a
consent judgment, but they cannot thus withdraw
children . . . from the protective custody of the
Griffin v. Griffin, 96 N.C. App. 324, 328, 385 S.E.2d 526, 529
(1989) (quoting Fuchs, 260 N.C. at 639, 133 S.E.2d at 491; citing
Voss v. Summerfield, 77 N.C. App. 839, 840, 336 S.E.2d 144, 145
(1985)); see also Story v. Story, 221 N.C. 114, 116, 19 S.E.2d 136,
137 (1942) ([P]arents cannot contract away the jurisdiction of the
court which is always alert in the discharge of its duty toward its
wards_the children of the State whose personal or propertyinterests require protection. (citation omitted)). Because an
increase in Young's income may properly be considered as a factor
in determining whether support should be increased, and because the
courts of this State cannot be precluded from protecting a child's
best interest yet cannot
sua sponte modify support (Royall, 120
N.C. App. at 882, 463 S.E.2d at 579-80)
, the provision barring
Lindquist from bringing a motion to increase Young's support
obligation based in part on Young's increased ability to pay is
The provision also precludes Lindquist from seeking an
increase in Young's support obligation in the event of a reduction
in Young's income. This is, however, superfluous, as a decrease in
a support payor's income may warrant a decrease, not an increase,
in support. This Court has routinely held that decreased income
may constitute changed circumstances warranting a reduction in
. See, e.g., Hammill v. Cusack, 118 N.C. App. 82, 453
S.E.2d 539 (1995) (finding no error where trial court decreased
support based on involuntary decrease in payor's income despite no
change in children's needs)
; McGee v. McGee, 118 N.C. App. 19, 27,
453 S.E.2d 531, 536 (1995) ([I]t now appears settled that a
significant involuntary decrease in a child support obligor's
income satisfies the necessary showing of changed circumstances to
decrease a support obligation.); O'Neal v. Wynn, 64 N.C. App. 149,
151-53, 306 S.E.2d 822, 823-24 (1983), aff'd, 310 N.C. 621, 313
S.E.2d 159 (1984) (determination of changed circumstances andreduction of child support affirmed absent change in child's needs
where payor's income decreased as a result of job loss and
borrowing money to start a new business); Schroader v. Schroader,
120 N.C. App. 790, 794, 463 S.E.2d 790, 793 (1995) ([A] voluntary
decrease in income, absent a finding of bad faith, may be
considered to support a finding of changed circumstances.).
Finally, the provision precludes Lindquist from seeking an
increase in Young's support obligation in the event of a reduction
in the time that Young is allotted for summer visitation
Supreme Court has held that [v]isitation privileges are but a
lesser degree of custody and thus encompassed by the term
custody for purposes of North Carolina General Statute section 50-
13.7 regarding modification of orders for child support or custody.
Clark, 294 N.C. at 575-76, 243 S.E.2d at 142; Lamond v. Mahoney,
159 N.C. App. 400, 402-03, 583 S.E.2d 656, 658 (2003) ([B]ecause
visitation privileges are but a lesser degree of custody, we must
apply the same principles to visitation  that apply to
custody. (quotation omitted)). This Court has held that
change in custody may constitute a changed circumstance supporting
modification of support obligations. Kowalick v. Kowalick, 129
N.C. App. 781, 787, 501 S.E.2d 671, 675 (1998) (In this case, the
trial court properly found that the change in [the child's] custody
constituted a changed circumstance supporting modification of
Defendant's child support obligation.). This makes sense, given
that a reduction in non-custodial visitation from, for example, sixweeks to one week per year would increase the custodial parent's
time, and likely related costs, of care by nearly ten percent
Because a reduction in visitation may constitute a
changed circumstance warranting a support modification,
the courts of this State cannot sua sponte modify support (Royall,
120 N.C. App. at 882, 463 S.E.2d at 579-80),
yet cannot be
precluded from protecting a child's best interest (Griffin, 96 N.C.
App. at 328, 385 S.E.2d at 529)
the provision barring Lindquist
from bringing a motion to increase Young's support obligation based
in part on a reduction in Young's visitation is void.
(See footnote 4)
In sum, because the provision precluding Lindquist from moving
for an increase in Young's support obligation under certain
circumstances for at least a two-year period is superfluous under
certain of the specified conditions and void under the others, wehold the entire provision to be void.
 Lindquist next asserts that the trial court erred by
including in its order matters not before the court. Specifically,
Lindquist contends that she and Young reached an agreement that
served as the basis for the trial court's order, and the trial
court exceeded its authority by providing further
contemplated by the parties. She therefore challenges that part of
the trial court order requiring that (1) Lindquist
share with Young
all school and medical records of the minor child and copies of
all school records[;] (2) Young be notif[ied] . . . prior to
medical appointment[s] of the minor child unless it is an
emergency[;] (3) Young and Lindquist inform [one another] of
[each other's] physical address where they reside and a current
telephone number; if either of these numbers should change the
party must notify the other within 72 hours of the change[;] and
Lindquist provide Defendant copies of all order forms for
Defendant to purchase school pictures of the minor child.
North Carolina General Statute section 50-13.2(b) states that
each parent shall have equal access to the records of the minor
child involving the health, education, and welfare of the child.
N.C. Gen. Stat. § 50-13.2(b) (2003). The order provisions
Lindquist challenges are
well within the purview of the statute.
The only North Carolina case Lindquist cites to support her
is Elrod v. Elrod, 125 N.C. App. 407, 481 S.E.2d 108(1997), which is easily distinguishable. In Elrod, the trial court
entered an order permitting home schooling of the children
conditioned on the mother allowing the father visitation. On
appeal, this Court held that the trial court did not have the
authority to condition the right of home schooling on compliance
with visitation because the initial custody order did not limit the
education of the children. Elrod, 125 N.C. App. at 411, 481 S.E.2d
at 111. Here, in contrast, the trial court in no way limited the
parties' control of Shaughnessy's education, health, and welfare
nor did it condition aspects of Shaughnessy's
education on Young's
visitation. Instead, the trial court ordered the sharing of
information about Shaughnessy's education, health, and welfare, to
which both parents have a right.
 Finally, Lindquist contends that the trial court erred in
omitting from its order matters that were addressed before the
court. The only example Lindquist identifies is the trial court's
partial omission of the time of day when Shaughnessy would be
picked up for visitation _ an alleged error even Lindquist admits
is merely clerical.
Nothing before this Court indicates that Lindquist objected to
this omission or made any motion to add the visitation pick-up time
to the order prior to its entry. In fact,
Lindquist, through her
attorney, read, approved as to form, and signed off on the order.
Moreover, contrary to Lindquist's assertion that, upon her filinga notice of appeal, the trial court lacked authority to correct the
error, North Carolina General Statute section 1A-1, Rule 60(a),
addressing clerical mistakes, makes plain that trial courts may
correct mistakes or omissions even during the pendency of an
appeal, either before the appeal is docketed in the appellate
division or thereafter with leave of the appellate division. N.C.
Gen. Stat. § 1A-1, Rule 60 (2003); Sink v. Easter, 288 N.C. 183,
199, 217 S.E.2d 532, 542 (1975) (Rule 60(a) specifically permits
the trial court to correct clerical mistakes before the appeal is
docketed in the appellate court, and thereafter while the appeal is
pending with leave of the appellate court[.]). Nothing before
this Court indicates that Lindquist petitioned the trial court to
correct the order during the pendency of this appeal. Because
Lindquist apparently at no time objected or made any motion to add
the visitation pick-up time to the order, and because the record
indicates that Lindquist explicitly approved what she now contends
is a clerical error, she has not preserved this issue for appeal.
N.C. R. App. P. 10(b) (In order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion[.]).
For the reasons stated herein, we affirm the order of the
trial court, except the provision therein precluding Lindquist from
bringing a motion for an increase in Young's support obligation,
which is vacated.
Affirmed in part, vacated in part.
Judge McGEE concurs.
Judge TYSON concurs in part and dissents in part.
TYSON, Judge concurring in part, dissenting in part.
I concur with the majority's opinion to the extent it: (1)
affirms the trial court's order finding plaintiff in willful
contempt; (2) affirms the trial court's decision to order the
parties to share information regarding Shaughnessy; and (3)
dismisses plaintiff's argument relating to omissions in the trial
court's order. I disagree with the holding in the majority's
opinion that the provision precluding Lindquist from moving for an
increase in Young's support obligation under certain circumstances
for a two-year period to be void. I respectfully dissent.
I. Untimely Appeal
Young argues Lindquist's appeal of whether the provision was
appropriately placed in the trial court's Order is not properly
before this Court because Lindquist is not yet aggrieved to warrant
such appeal. I agree.
Our appellate courts have long recognized the rule that:
Only a party aggrieved may appeal. G.S.
1-271; Rubber Co. v. Tire Co., 270 N.C. 50,
153 S.E.2d 737 (1967); Coburn v. Timber Corp.,
260 N.C. 173, 132 S.E.2d 340 (1963); Langley
v. Gore, 242 N.C. 302, 87 S.E.2d 519 (1955).
The scope of review by an appellate court is
usually limited to a consideration of the
assignments of error in the record on appeal
and it is well established that if the
appealing party has no right to appeal the
appellate court should dismiss the appeal ex
mero motu. Bailey v. Gooding, 301 N.C. 205,270 S.E.2d 431 (1980); see also Rules of
Appellate Procedure, Rule 10(a). When a party
fails to raise an appealable issue, the
appellate court will generally not raise it
for that party. Henderson v. Matthews, 290
N.C. 87, 224 S.E.2d 612 (1976).
Harris v. Harris, 307 N.C. 684, 690, 300 S.E.2d 369, 373-74 (1983).
No appeal lies from a judgment until somebody is hurt or
'aggrieved' by it. Yadkin County et. al. v. City of High Point
et. al., 219 N.C. 94, 95, 13 S.E.2d 71, 72 (1941) (citing C.S.,
Here, the challenged provision is prospective in nature, was
not adjudicated, and has not affected the rights of either party,
or Shaughnessy, at this stage. Until Lindquist moves for a
modification in child support and the trial court denies her motion
based on the challenged provision, she is not a party aggrieved.
See N.C. Gen. Stat. § 1-271 (2003). This assignment of error is
not properly before this Court and should be dismissed.
In addition to this issue not being properly before our Court,
Lindquist waived any rights to challenge the provision. At trial,
Lindquist's attorney stated:
My client will allow her child to miss three
days of school in order for that child to
visit . . . In addition, in return for that,
your Honor, that will resolve the issue of the
complainant's motion to modify visitation. It
will resolve the issue at this time of the
motion to modify child support. And the
plaintiff will agree she will not file a
motion to modify child support based on either
an increased income or a reduction in the time
that [defendant] is allotted for his summervisitation within two years, based on those
two grounds, solely on those two grounds.
In addition, once the findings of fact were entered, including the
challenged provisions, Lindquist's attorney signed the order
acknowledged he read [it] and approved [it] as to form.
Lindquist now attempts to assign error to portions of the order she
consented to during trial.
Rule 10 of the North Carolina Rules of Appellate Procedure
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. . . . Any such question which was
properly preserved . . . may be made the basis
of an assignment of error in the record on
N.C.R. App. P. 10(b)(1) (2004). The Rules of Appellate Procedure
are mandatory. They are designed to keep the process of perfecting
an appeal flowing in an orderly manner. Craver v. Craver, 298
N.C. 231, 236, 258 S.E.2d 357, 361 (1979) (citation omitted).
Although Lindquist has assigned error to the provisions, she:
(1) failed to make any objection before the trial court; (2) agreed
to the order; and (3) waived any right to challenge the order. Her
assignment of error was not properly preserved, which precludes
our review. N.C.R. App. P. 10(b)(1). This assignment of error
should be dismissed.
I concur with sections one, three, and four of the majority's
opinion and agree with its reasoning and resolution of Lindquist's
assignments of error addressed in those sections.
I disagree with the majority's decision to reach the merits of
Lindquist's assignments of error in section two. The majority's
opinion reverses the trial court without addressing the ripeness of
Lindquist's appeal, or her waiver by failing to object and her
consent to the order prior to entry. Further, the majority's
opinion correctly states that the trial court is without authority
to sua sponte
modify an existing support order. Royall v. Sawyer
120 N.C. App. 880, 882, 463 S.E.2d 578, 579-80 (1995). The
majority's decision to address this issue contradicts our appellate
rules, which are mandatory. I respectfully dissent.
Footnote: 1 We note that, while Lindquist's letters are dated 9 June 2003,
no postmark is provided and Lindquist testified that I sent them
a letter on June 11th.
Additionally, at the hearing, Lindquist and Young verbally
agreed that Lindquist would be precluded from seeking an increase
in Young's support obligation were Lindquist's income to
decrease. Because this provision was not included in the written
court order being appealed, we refrain from addressing it.
Footnote: 3The dissent argues that Lindquist's appeal of this issue is not
yet ripe, as she has not filed a motion to modify child support.
Were Lindquist to make such a motion under the circumstances
prohibited by the order, Lindquist would be in violation of the
court order and open herself up to further contempt proceedings.
See, e.g., N.C. Gen. Stat. § 5A-21(a) (Failure to comply with an
order of a court is a continuing  contempt . . ..). We
therefore find this argument unpersuasive.
Footnote: 4 We are familiar with the case law indicating that support and
visitation may not be tied to one another. Those cases, however,
are inapplicable, as they hold that payment of support, awarded
for the child's welfare, may not be made conditional upon the
custodial parent's compliance with visitation. This is not at
issue here. See, e.g., Appert v. Appert, 80 N.C. App. 27, 40,
341 S.E.2d 342, 349 (1986) (holding that conditioning the
payment or receipt of child support upon compliance with an order
granting the noncustodial parent visitation privileges as a means
of enforcing the visitation order is inherently detrimental to
the best interest of the minor child and is therefore contrary to
the law); Sowers v. Toliver, 150 N.C. App. 114, 118, 562 S.E.2d
593, 595-96 (2002) (stating that [t]he duty to provide financial
support is independent of visitation rights and one may not be
made contingent upon the other and that child support is guided
by concern for the best interests of the child and not by a
desire to punish a disobedient parent and holding that the
court's terminating child support where the custodial parent was
in contempt regarding visitation was therefore an abuse of
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