Judgments; Child Support, Alimony; Recordation

Subject:

Judgments; Child Support, Alimony; Recordation

Requested By:

Mrs. Daphene L. Cantrell Assistant Clerk of Superior Court Mecklenburg County

Question:

Should judgments requiring periodic payments for support or alimony which do not expressly provide that the judgment is a lien against real property in conformity with G.S. 50-13.4(f) (8) and G.S. 50-16.7(i) be entered on the Judgment Docket?

Conclusion:

No.

G.S.

1-233 provides in part that:

"Every judgment of the superior or district court, affecting the right to real property, or requiring in whole or in part the payment of money, shall be entered by the clerk of said superior court on the judgment docket of the court. . . ."

G.S.

50-13.4(f)(8) provides as follows:

"A judgment for child support shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments." (Emphasis supplied)

G.S.

50-16.7(i) makes identical provisions for a judgment for alimony or alimony pendente lite.

Judgments are either interlocutory or final, and a judgment is interlocutory when it is subject to change by the Court during pendency of the action to meet the exigencies of the case. Skidmore

v. Austin, 261 N.C. 713, 136 S.E. 2d 99 (1964). A final judgment is one which decides the case upon its merits without need of further direction of the Court. 5 Strong, N.C. Index 2d, Judgments § 5. Moreover the effect of an order or judgment is not determined by its recitals but by what may or must be done pursuant thereto. 5 Strong, N.C. Index 2d, Judgments, § 4.

The judicial decree in a child custody and support matter is subject to modifications upon a change of circumstance affecting the welfare of the child and is not final in nature. Stanback v. Stanback, 287 N.C. 448, 215 S.E. 2d 30 (1975).

G.S. 50-13.7 provides that an order for custody or support or both of a minor child may be modified or vacated at any time upon motion in the cause or a showing of changed circumstances. G.S. 50-16.9 provides for like modification in alimony or alimony pendente lite situations.

It was never intended that judgments not final in nature be docketed pursuant to G.S. 1-233. To hold otherwise would circumvent the clear intent of the legislature. Therefore, this Office is on the Opinion that only those judgments for child support, alimony, or alimony pendente lite, which constitute liens against real property as provided for by G.S. 50-13,4(f)(8) and G.S. 50-16.7(i) and those for past due periodic payments which have been reduced to judgment and constitute a lien "as other judgments" need be docketed by the clerk. If it were otherwise, the words "as other judgments" would be without meaning. Further, since judgment in each of these instances may be modified by the Court at any time upon a change in circumstances, it is neither a final judgment nor a judgment for a sum certain until such time as the judgment specifically becomes a lien against real property pursuant to G.S. 50-13.4(f)(8) and G.S. 50-16.7(i), at which time they should be docketed.

Rufus L. Edmisten Attorney General

Parks H. Icenhour Assistant Attorney General