DEBRA LYNN CHAPMAN,
Plaintiff,
v
.
Wake County
No. 96 CVD 6082
EDWARD ALAN CHAPMAN,
Defendant.
Kathleen Murphy for plaintiff-appellee.
Brooks, Stevens & Pope, P.A., by Archie W. Futrell, III, for
defendant-appellant.
EAGLES, Chief Judge.
Defendant Edward Chapman appeals from the trial court's order
increasing the amount of child support he must pay, denying his
request to reduce his alimony payments to plaintiff Debra Chapman,
and requiring defendant to pay plaintiff's attorney fees.
Defendant argues on appeal that the trial court erred by: (1)
concluding that a reduction in alimony was not justified; (2)
concluding that defendant should pay more child support; (3)
failing to deviate from the amount of child support ordered by the
North Carolina Child Support Guidelines; (4) inaccurately
calculating the amount of child support arrears; (5) establishing
prospective child support; and (6) awarding attorney fees toplaintiff. After careful review of the record and briefs, we
affirm.
Plaintiff and defendant were married on 12 May 1984 and
separated on 1 September 1995. Two children, Kristin and Tyler,
were born during the marriage. After the couple separated, the
children lived with plaintiff. Plaintiff sued for child support,
post-separation support, equitable distribution and attorney fees.
Plaintiff filed financial affidavits for the years of 1996 and 1997
to support her complaint. In an order filed 3 April 1997, the
trial court ordered defendant to pay $978 each month as child
support. On 22 August 1997, the trial court ordered defendant to
pay $800 monthly in alimony to plaintiff.
On 8 November 2000, plaintiff filed a motion seeking increased
child support payments. Plaintiff cited an increase in the
children's needs and an increase in defendant's income as grounds
for the modification of defendant's child support payments.
Plaintiff prepared and filed financial affidavits for the years of
2000 and 2001 detailing her income and expenses. Defendant denied
plaintiff's allegation that an increase in child support was
justified. Defendant also moved for a reduction in alimony on 4
April 2001, alleging that plaintiff's income had substantially
increased. On 13 April 2001, defendant filed a motion requesting
the trial court to vary from the North Carolina Child Support
Guidelines. Defendant's motion was based upon his allegation that
no changes sufficient to support a modification of the 3 April 1997
child support order had taken place. After a hearing on 4 and 5February 2002, the trial court increased the amount of child
support defendant must pay and ordered defendant to pay plaintiff's
attorney fees and child support arrearage. The trial court denied
defendant's motion to reduce the alimony payment ordered in the 22
August 1997 order. Defendant appeals.
Defendant first contends that the trial court erred by
refusing to reduce alimony to be paid to plaintiff. Defendant
argues that plaintiff's increased income was a substantial change
in circumstances which justified the decrease he requested. We
disagree.
A party requesting a modification or vacation of an alimony
order must file a motion in the cause and show changed
circumstances. See G.S. § 50-16.9(a) (2001). “The party moving
for modification of an award of alimony has the burden of showing
a change of circumstances.” Gill v. Gill, 29 N.C. App. 20, 21, 222
S.E.2d 754, 755 (1976). “[T]he changed circumstances necessary
for modification of an alimony order must relate to the financial
needs of the dependent spouse or the supporting spouse's ability to
pay.” Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846
(1982)(citing Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921
(1980); Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494,
disc. rev. denied, 295 N.C. 648, 248 S.E.2d 249 (1978)), overruled
on other grounds, Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732
(1984). When considering whether a change in circumstances took
place, “[i]t is appropriate for the trial court to consider whether
the dependent spouse's financial need, that is, dependency, as itrelates to the factors in G.S. § 50-16.5 has changed” from the need
shown at the time of the original alimony award. Cunningham v.
Cunningham, 345 N.C. 430, 437, 480 S.E.2d 403, 407 (1997); see
Britt v. Britt, 49 N.C. App. 463, 474, 271 S.E.2d 921, 928
(1980)(“The present overall circumstances of the parties must be
compared with the circumstances existing at the time of the
original award in order to determine if there has been a
substantial change.”). “[A]limony is designed to enable the
dependent spouse to achieve the standard of living she or he
enjoyed during the marriage.” Barham v. Barham, 127 N.C. App. 20,
30, 487 S.E.2d 774, 780 (1997), aff'd per curiam, 347 N.C. 570,
494 S.E.2d 763 (1998).
Defendant contends that because plaintiff's income now exceeds
her reasonable expenses, plaintiff is no longer entitled to receive
alimony payments. Defendant bases his assignment of error upon
the trial court's use of plaintiff's 2001 financial affidavit.
Defendant argues that the financial affidavit contains exaggerated
expense amounts for plaintiff and the children and did not properly
list all plaintiff's sources of income. In addition, defendant
contends that the trial court erred by computing plaintiff's income
from her paycheck stub instead of from her income tax return or W-2
forms.
Here, the order may only be reversed upon a showing that the
trial court abused its discretion. See Clark v. Clark, 301 N.C.
123, 271 S.E.2d 58 (1980). The trial court found that plaintiff's
income had increased by 35% (from $27,000 to $41,200) since theentry of the 1997 alimony order and defendant's income had
increased by 38% (from $68,256 to $108,676). Evidence of
defendant's income included his testimony and a paycheck stub.
Evidence of plaintiff's income included her testimony, a paycheck
stub, and federal income tax forms, including a W-2 form.
Plaintiff's affidavit listed her monthly expenses as $5,826.
However, the trial court found that plaintiff's reasonable expenses
were $3,476 monthly. The trial court found that plaintiff's
expenses had increased by 25% since the expenses were considered in
1997. The trial court also found that plaintiff's increase in
expenses was the result of an increase in the cost of maintaining
her standard of living as determined in 1997 rather than an
increase in her standard of living. Where conflicting evidence
regarding expenses or income is presented, it is within the trial
court's discretion as a finder of fact to determine which evidence
is credible. See White v. White, 312 N.C. 770, 777, 324 S.E.2d
829, 833 (1985)(“Historically our trial courts have been granted
wide discretionary powers concerning domestic law cases.”). The
trial court's findings of fact were all based upon sufficient
evidence from the record and testimony of the parties at the
hearing. In addition, the findings of fact support the trial
court's conclusions of law. We find no abuse of discretion in the
trial court's conclusion that no change of circumstances justifying
modification of alimony had occurred. Therefore, this assignment
of error is overruled. Defendant further assigns error to the trial court's finding
that defendant had failed to rebut the presumption that there had
been a substantial change in circumstances with regard to child
support. Defendant asserts that plaintiff's 2001 financial
affidavit exaggerated the children's financial needs. Defendant
argues that plaintiff's evidence does not demonstrate a change in
circumstances and res judicata prevents the trial court from
increasing his child support payments. We disagree.
Modification of a child support order can occur only when an
interested party demonstrates a change in circumstances. See G.S.
§ 50-13.7 (2001). This Court has outlined several ways to show a
change in circumstances, including:
[A] substantial increase or decrease in the
child's needs; a substantial and involuntary
decrease in the income of the non-custodial
parent even though the child's needs are
unchanged; a voluntary decrease in income of
either supporting parent, absent bad faith,
upon a showing of changed circumstances
relating to child oriented expenses; and, for
support orders that are at least three years
old, proof of a disparity of fifteen (15)
percent or more between the amount of support
payable under the original order and the
amount owed under North Carolina's Child
Support Guidelines based upon the parties'
current income and expenses.
Wiggs v. Wiggs, 128 N.C. App. 512, 515, 495 S.E.2d 401, 403
(1998)(internal citations omitted), overruled on other grounds,
Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). The moving
party bears the burden of proving the change in circumstances by
one of these methods. See Kelly v. Kelly, 77 N.C. App. 632, 636,
335 S.E.2d 780, 783 (1985). It is not necessary to show a“substantial change in circumstances” if the party requesting
modification of the child support award shows that the previous
child support order is more than three years old and the current
amount of support dictated by application of the North Carolina
Child Support Guidelines differs by at least fifteen percent from
the amount stated in the previous order. Garrison v. Connor, 122
N.C. App. 702, 706, 471 S.E.2d 644, 647, disc. rev. denied, 344
N.C. 436, 476 S.E.2d 116 (1996). The three-year, fifteen percent
rule is one method of showing a change in circumstances. Id.
Defendant argues that his evidence indicated that the
children's reasonable needs had not increased sufficiently to show
a change in circumstances. Additionally, defendant contends that
his child support payments should be frozen at the level set by the
3 April 1997 order because of the principle of res judicata. Here,
plaintiff presented her own testimony and her 2001 financial
affidavit to show that the children's needs had grown tremendously
in the four years since child support payments were ordered
originally. In 1997, the children required $978 monthly for
support to meet their reasonable needs. Here, the trial court
found in its 2002 order that the children's monthly needs had
increased to $1,306. Defendant testified and introduced evidence
to show that plaintiff was overestimating her children's expenses.
Res judicata would not apply here because evidence of a change in
circumstances was shown, meaning that the facts of the case were
different from the facts present at the time of the first child
support order. See Wehlau v. White, 75 N.C. App. 596, 598, 331S.E.2d 223, 225 (1985)(holding that a prior custody or child
support decree is only res judicata as to the facts disclosed to
the court at the time of the first order or decree), overruled on
other grounds, Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898
(1998). The trial court found plaintiff's evidence credible and
based its decision to raise defendant's child support payments upon
plaintiff's evidence. This credibility determination was a matter
properly within the discretion of the trial court. The trial court
did not abuse its discretion. This assignment of error is
overruled.
Defendant also assigns error to the trial court's conclusion
that the child support award should be determined without deviation
from the North Carolina Child Support Guidelines. Defendant argues
that the child support payment set by application of the Guidelines
is unjust so that a deviation is necessary. We disagree.
G.S. § 50-13.4(c) states, in pertinent part:
The court shall determine the amount of child
support payments by applying the presumptive
guidelines established pursuant to subsection
(c1) of this section. However, upon request
of any party, the Court shall hear evidence,
and from the evidence, find the facts relating
to the reasonable needs of the child for
support and the relative ability of each
parent to provide support. If, after
considering the evidence, the Court finds by
the greater weight of the evidence that the
application of the guidelines would not meet
or would exceed the reasonable needs of the
child considering the relative ability of each
parent to provide support or would be
otherwise unjust or inappropriate the Court
may vary from the guidelines. If the court
orders an amount other than the amount
determined by application of the presumptive
guidelines, the court shall make findings offact as to the criteria that justify varying
from the guidelines and the basis for the
amount ordered.
G.S. § 50-13.4(c)(2001). An award of child support is reviewed on
appeal for an abuse of discretion. See Warner v. Latimer, 68 N.C.
App. 170, 314 S.E.2d 789 (1984). The trial court's decision to
deviate from the Child Support Guidelines when determining child
support payments must be supported by findings of fact justifying
the variation and providing a basis for its award. See G.S. § 50-
13.4(c). Here, the trial court awarded child support according to
the North Carolina Guidelines using Child Support Worksheet A.
The trial court found that defendant's child support
obligation was $1,356.35, assuming that plaintiff earned $40,000
per year and defendant earned $115,000 per year. The trial court
also found that defendant's child support obligation would be
$1,305.77 per month, assuming that plaintiff earned $41,200
annually and defendant earned $108,676. These different annual
income amounts were based upon testimony by plaintiff that her
starting salary was $40,000, which had increased to $41,200 and
defendant's testimony that his salary of $115,000 would decrease by
5% in February 2002. The trial court also found as a fact that
defendant had failed to show application of the Guidelines to be
unjust or inappropriate. The trial court's findings of fact thus
supported its conclusions of law. The trial court did not abuse
its discretion in awarding child support of $1,356 from the filing
of plaintiff's motion until January 2002, and prospective supportof $1,306 from February 2002 onwards. This assignment of error is
overruled.
Defendant further assigns error to the trial court's
computation of the child support arrearage and to the trial court's
determination of prospective child support. Defendant contends
that the court's findings of plaintiff's income being $40,000 in
2001 and $41,200 in 2002 is not supported by the evidence.
Defendant argues that using these income figures to calculate child
support arrears and prospective support was improper. We disagree.
As noted above, the trial court must determine the credibility
of conflicting evidence. Here, the trial court's findings
regarding plaintiff's earnings were supported by her evidence.
Although conflicting evidence was introduced, we cannot say that
the trial court abused its discretion by placing greater emphasis
on plaintiff's evidence. We find no abuse of discretion in the
trial court's calculations of child support arrearage and
prospective child support. These assignments of error are
overruled.
Defendant's final argument on appeal is that the trial court
erred by awarding attorney fees to plaintiff. Defendant argues
that the trial court did not make sufficient findings to support
its conclusion that plaintiff was unable to defray the expenses of
her lawsuit. We disagree.
G.S. § 50-13.6 outlines when attorney fees can be awarded in
domestic lawsuits. See G.S. § 50-13.6 (2001). The trial court was
required to make three findings of fact to support the award ofattorney fees in this child support action: (1) that plaintiff was
an interested party acting in good faith; (2) plaintiff had
insufficient means to defray the costs of the lawsuit; and (3) that
defendant refused to provide adequate support at the time the
proceeding was instituted. See Burr v. Burr, 153 N.C. App. 504,
570 S.E.2d 222 (2002). The trial court made all of these findings
and, in addition, found that plaintiff was unable to meet her own
needs or the reasonable needs of her children from her current
income. These findings sufficiently support the trial court's
award of attorney fees. This assignment of error is overruled.
For the reasons stated, we affirm.
Affirmed.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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