1. Child Support, Custody, and Visitation--support--modification improper--solely
based on increase in obligor's income
The trial court erred in modifying the original child support order because although a
significant involuntary decrease in the obligor's income may satisfy the necessary showing of
changed circumstances to justify a modification, a modification is improper if based solely upon
the ground that the obligor's income has increased.
2. Child Support, Custody, and Visitation--support--attorney fees--specific findings
required
The trial court erred in awarding attorney fees to plaintiff-mother in a child support case
because it failed to make specific findings that: (1) the mother was acting in good faith; (2) the
mother's means were insufficient to defray the expenses of the suit; and (3) the father refused to
provide the support which was adequate under the circumstances existing at the time of the
institution of this action.
Judge GREENE dissenting in part.
Appeal by defendant-appellant from judgment entered 28 April
1998 by Judge James T. Bowen, District Court, Cleveland County.
Heard in the Court of Appeals 8 June 1999.
Corry, Cerwin & Luptak, by Clayward C. Corry, Jr. and Todd
R. Cerwin for the defendant-appellant.
Teddy & Meekins, P.L.L.C., by David R. Teddy for the
plaintiff-appellee.
WYNN, Judge.
Plaintiff mother and defendant father married on 21 December1974 and conceived three children during their union. Following
their separation on 19 June 1986, District Court Judge George W.
Hamrick awarded custody of the three children to the mother and
ordered the father to pay $1,300.00 per month for child support--
$500.00 for each of the two older children and $300.00 for the
younger child.
The father complied with this order until July 1996 when he
unilaterally reduced his child support to $800.00 per month
following the oldest child's eighteenth birthday and graduation
from high school. Thereafter, the mother filed a motion in the
cause seeking modification of the original child support order to
increase the amount of child support to be paid by the father.
Following a hearing on her motion, District Court Judge
James T. Bowen increased the father's child support obligation
from $1,300.00 per month to $1,766.00 per month and awarded the
mother reasonable attorney's fees. This appeal followed.
(a) Since the entry of the Court's Order the
[father's] gross income has substantially
increased. In addition, the [father's] net
worth has substantially increased since 1986
to the point where he is now worth
approximately $3,500,000.00.
(b) One of the minor children born to the
marriage of the [mother] and [father] has
reached the age of 18 and graduated from high
school.
(c) The [father's] child support obligation
has not been computed using the most recent
child support statutory guidelines published
by the Conference of Chief District Court
Judges and published jointly by the North
Carolina Administrative Office of the Courts
and the Department of Human Resources in
accordance with N.C.G.S. § 50-13.4(c).
(d) The needs of the minor children have
increased since 1986 when the original child
support [was] entered.
At the outset, we note that the trial court's finding as to
the oldest child's eighteenth birthday and graduation from highschool is an insufficient finding to show a substantial change in
circumstances to support an increase in child support. Court
ordered child support payments terminate when a child has: (1)
reached age eighteen and (2) graduated from high school. See
N.C. Gen. Stat. § 50-13.4 (c) (1995); see also Leak v. Leak, 129
N.C. App. 142, 497 S.E.2d 702 (1998).
Further, the trial court's finding that the father's child
support obligation was not computed using the most recent child
support statutory guidelines is an insufficient finding to show a
substantial change in circumstances needed to support an increase
in child support. See 1994 Child Support Guidelines (Child
Support Guidelines do not apply if the parents' combined adjusted
income is higher than $12,500 per month ($150,000 per year); see
also Taylor v. Taylor, 118 N.C. 356, 362, 455 S.E.2d 442, 447
(1995), reversed on other grounds by 343 N.C. App. 50, 468 S.E.2d
33 (1996).
Moreover, the trial court's finding that the needs of the
minor children have increased since the entry of original child
support order is insufficient to show a substantial change in
circumstances because there is no evidence in the record relating
to the reasonable needs of the children. See Coble v. Coble, 300
N.C. 708, 714, 268 S.E.2d 185, 190 (1980). (stating that
“[e]vidence must support findings; findings must supportconclusions; conclusions must support the judgment. . . .”);
Brooker v. Brooker, 133 N.C. 285, 515 S.E.2d 234 (1999) (holding
that since the evidence in the record supported the trial court's
ultimate findings that the child's needs had increased since the
entry of the prior order, such findings as to the child's needs
were sufficient to support the trial court's changed
circumstances conclusion).
Consequently, the sole factor supporting the trial court's
determination that there had "been a substantial change in
circumstances such that it was appropriate . . . to modify the
prior" court order of child support was its remaining finding
that since the initial custody order, the father's annual income
had increased from $150,000.00 to $273,351.00.
It 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. See Greer v. Greer, 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”); see also Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487
(1963)(holding that an increase in the allowance provided for in
a separation agreement for support and maintenance of theparties' minor children is not warranted in absence of evidence
of a change in condition or of a need for an increase,
particularly where the increase is sought solely on the ground
that the father's income has increased).
In fact, this Court in distinguishing Padilla, supra, 118
N.C. App. at 709, 457 S.E.2d at 319 (holding that a significant
involuntary decrease in a child support obligor's income may
satisfy the necessary showing of changed circumstances to support
a change in a child support obligation even though there is no
evidence of a change in the child's needs) from Davis v. Risely,
104 N.C. App. 798, 411 S.E.2d 171 (1991) (holding that a
supporting spouse's failure to make the threshold showing of
changed circumstances in support of his motion to modify the
child support order in a divorce decree precluded recalculation
of his child support obligation in accordance with the most
recent revision of the child support guidelines) stated that:
[p]roving changed circumstances based on a
decrease in income was not a viable option
for the supporting party in Davis because his
income had increased. Thus, he needed to
show changed circumstances by some other
means, such as showing a change in the
children's needs.
Padilla, 118 N.C. App. at 713, 457 S.E.2d at 321.
However, the dissent in the instant case cites a treatise, 3
SUZANNE REYNOLDS & KENNETH M. CRAIG, North Carolina Family Law, § 229, p. 190 (Supp. 1997, 4th ed.) and Padilla, for the position
that the evidence of an increase in the father's annual income
“is sufficient to support the conclusion that there has been a
substantial change in circumstances within the meaning of N.C.
Gen. Stat. § 50-13.7, even in the absence of any showing that the
needs of the children have changed.”
Specifically, that treatise states:
[i]t now appears clear however, that a
modification may occur upon a showing of a
change in circumstances relating to the
ability of the parents to pay support without
regard to any change in the needs of the
child.
3 SUZANNE REYNOLDS & KENNETH M. CRAIG, North Carolina Family Law,
§ 229 at 190. Nonetheless, all of the cases cited by the
treatise in support of that proposition involve an involuntary
decrease in the obligor's income.
(See footnote 1)
Id. In effect, thetreatise's proposition applies only to situations where the child
support obligor's income has decreased.
(See footnote 2)
Id.
Moreover, our holding in Padilla does not encompass a
situation where the child support obligor's income has increased.
See id; see also McGee v. McGee, 118 N.C. App. 19, 453 S.E.2d 531
(1995); Pittman v. Pittman, 114 N.C. App. 808, 443 S.E.2d 96
(1994). Thus, an increase in income alone is not enough to prove
a change of circumstances to support a child support obligation.
See Greer 101 N.C. App. at 351, 399 S.E.2d at 399; Fuchs, 260
N.C. at 635, 133 S.E.2d at 487.
Because the trial court's finding that the father's income
had substantially increased was the sole ground supporting itsdetermination that changed circumstances existed to warrant a
child support increase, this order must be vacated and remanded.
Upon remand, the trial court should consider whether any change
of circumstances exists which would affect the children's welfare
or an increase in their needs. Since, there is no evidence in
the record regarding the children's reasonable needs, the trial
court may admit new evidence if necessary to make findings as to
the children's reasonable needs. See Ingle v. Ingle, 53 N.C.
App. 227, 232, 280 S.E.2d 460, 463 (1981).
We further note that evidence and findings relating to the
children's reasonable needs are necessary for the trial court's
determination of the amount of support because this is not a
child support guideline case. See Taylor, 118 N.C. App. at 362,
455 S.E.2d at 447 (quoting Newman v. Newman, 64 N.C. App. 125,
127, 306 S.E.2d 540, 542, disc. rev. denied, 309 N.C. 822, 310
S.E.2d 351 (1983) (stating that “[i]n determining child support
on a case-by-case basis, the order 'must be based upon the
interplay of the trial court's conclusions of law as to (1) the
amount of support necessary to meet the reasonable needs of the
child and (2) the relative ability of the parties to provide that
amount'”).
Accordingly, the trial court's order increasing support was
not based on sufficient findings of fact and must be vacated andremanded to allow the court to admit new evidence and make
findings of fact relating to the children's reasonable needs.
N.C. Gen. Stat. § 50-13.6 (1995).
Hence, the court must make the following findings of fact
prior to awarding attorney's fees to an interested party in a
proceeding for a modification of child support: (1) the party is
acting in good faith, (2) the party has insufficient means to
defray the expenses of the suit; and (3) the party ordered to paysupport has refused to provide support which is adequate under
the circumstances existing at the time of the institution of the
action or proceeding. See Quick v. Quick, 67 N.C. App. 528, 313
S.E.2d 233 (1984).
Here, the trial court failed to make specific findings that:
(1) the mother was acting in good faith, (2) the mother's means
were insufficient to defray the expenses of the suit; and (3) the
father refused to provide the child support which was adequate
under the circumstances existing at the time of the institution
of this action. Thus, this award of attorney fees must also be
vacated and remanded for a new award based on appropriate
findings of fact.
Vacated and remanded.
Judge MARTIN concurs.
Judge GREENE dissenting in part.
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