Appeal by defendant from order dated 27 June 2002 by Judge
Rebecca B. Knight in Buncombe County District Court. Heard in the
Court of Appeals 10 September 2003.
Robert E. Riddle, P.A., by Robert E. Riddle, for plaintiff-
appellee.
The Moore Law Firm, by Jennifer W. Moore, for defendant-
appellant.
BRYANT, Judge.
Kenneth Fowler Everly, Jr. (defendant) appeals an order dated
27 June 2002 increasing his child support obligations based on a
substantial change in circumstances.
Suzanne Everly (plaintiff) filed a motion in the cause dated
20 March 2002 requesting modification of a foreign child support
judgment previously registered with the trial court. The motion
alleged a substantial change in circumstances in that plaintiff had
experienced a significant increase in her expenses by having to
provide day care/schooling in the amount of $191.00 per week forthe parties' two children.
The “Statement of Testimonial Evidence” from the hearing on
plaintiff's motion reveals that a foreign judgment had been entered
in Texas on 6 November 2000 based on mediation between the parties,
whereby defendant was to pay $750.00 per month in child support.
During the mediation, plaintiff informed the mediator of her intent
to move to North Carolina to attend college full-time. Defendant,
however, was unaware of her intent to move. At the time of the
mediation, plaintiff was still living at the marital home in Texas
and did not have any day care expenses. In September 2000,
plaintiff did in fact move to Henderson County, North Carolina to
attend classes at the University of North Carolina at Asheville
beginning January 2001. From September 2000 until the date of the
modification hearing, plaintiff lived in her parents' home; but as
of the date of the hearing she had moved into a new house built by
her parents, for which “she may have a rent payment which she did
not have initially when she moved to Henderson County.” In January
2001, she enrolled the parties' two children in day care at a cost
of $800.00 per month. Plaintiff's family assisted with the
children's school tuition until they became unable to do so. At
the time of the North Carolina modification hearing, defendant's
income working as an airline pilot was substantially similar to his
income in November 2000.
In its 27 June 2002 order, the North Carolina trial court
found as fact that:
1. . . . Plaintiff . . . and the minorchildren have been citizens and residents of
Henderson County, North Carolina[] since
September 8, 2000.
2. . . . Plaintiff is a student at UNCA and is
pursuing a teaching degree and certification
in that field. . . . Plaintiff is not
currently employed because her schooling is
full[-]time.
3. The parties were formerly resident[s] of
Waxahachie, Texas and entered into a custody
and support settlement there which was
incorporated into a Judgment in the District
Court of Ellis County, Texas under date of
November 6, 2000. The parties negotiated the
terms of their settlement in August, 2000[,]
at which time they were both living in Texas.
. . . [F]ollowing their reaching a mediated
agreement . . . [p]laintiff moved to North
Carolina and began school in January[] 2001 in
order to complete her degree. . . . [S]he is
presently attending the University of North
Carolina at Asheville with a junior
status. . . .
The trial court then made the following mixed finding and
conclusion:
(See footnote 1)
5. Since the entry of the foreign judgment for
child support[,] there has been a substantial
change in circumstances as a result of . . .
[p]laintiff's returning to school full[-]time.
That . . . [p]laintiff has had a significant
increase in her expenses in that she now
provides the minor children with day
care/schooling, which costs eight hundred
($800[.00]) dollars per month.
Based on its conclusion, the trial court then increased defendant's
child support obligation to $1,718.00 per month.
___________________________
The dispositive issue is whether the trial court's findings
are supported by competent evidence.
When a party to a foreign support order registers that order
within this State, the order is treated as if issued by a court of
this State.
Hammill v. Cusack, 118 N.C. App. 82, 85, 453 S.E.2d
539, 541 (1995); N.C.G.S. §§ 52C-6-601 to -603 (2001).
Accordingly, it “is enforceable in the same manner and is subject
to the same procedures as an order issued by a tribunal of this
State.” N.C.G.S. § 52C-6-603(b) (2001).
A child support order may be modified if any of the following
circumstances is shown to exist: (1) a substantial increase or
decrease in the child's needs, (2) a substantial and involuntary
decrease in the income of the non-custodial parent even though the
child's needs are unchanged, (3) a voluntary decrease in income of
either supporting parent, absent bad faith, upon a showing of
changed circumstances relating to child-oriented expenses, or (4)
for support orders that are at least three years old, proof of a
disparity of fifteen percent or more between the amount of support
payable under the original order and the amount owed under the
North Carolina Child Support Guidelines based on the parties'
current income and expenses.
Wiggs v. Wiggs, 128 N.C. App. 512,
515, 495 S.E.2d 401, 403,
overruled on other grounds by Pulliam v.
Smith, 348 N.C. 616, 620 & n.1, 501 S.E.2d 898, 900 & n.1 (1998).
The burden of showing a substantial change of circumstances rests
on the moving party.
Hammill, 118 N.C. App. at 85, 453 S.E.2d at
541. Since the evidence before the trial court completely fails to
support methods (2), (3), and (4) of proving changed circumstances
(no change in defendant's income; no change in plaintiff's income
as plaintiff had been unemployed in Texas according to the divorce
decree; and foreign judgment less than three years old), we focus
our analysis solely on whether the trial court properly found a
substantial increase in the needs of the parties' children based on
their current day care expenses.
In this case, the trial court concluded a substantial change
in circumstances warranting modification of the foreign support
judgment existed based on plaintiff's return to school and the
resulting day care costs. Defendant challenges this conclusion on
two grounds: First, he argues the trial court's findings, on which
the conclusion was based, were not supported by competent evidence
relating to the children's reasonable needs; and second, he
contends there were insufficient findings as to the needs and
welfare of the children to support the conclusion of a substantial
change in circumstances.
See Coble v. Coble, 300 N.C. 708, 714,
268 S.E.2d 185, 190 (1980) (conclusion must be supported by
findings, and findings must be supported by competent evidence in
the record).
“Where the moving party is relying on either an increase or
decrease in the child's needs to establish changed circumstances,
she has the burden of 'showing the child's expenses both at the
time the original support order was entered and at the present
time.'”
Brooker v. Brooker, 133 N.C. App. 285, 289, 515 S.E.2d234, 237 (1999) (quoting
Davis v. Risley, 104 N.C. App. 798, 800,
411 S.E.2d 171, 173 (1991)). “There is no need[, however,] for the
trial court to make specific, or evidentiary, findings of fact
reciting the child's past and present expenses” as long as the
trial court makes “ultimate findings necessary to resolve material
disputes in the evidence.”
(See footnote 2)
Id. This includes the ultimate
finding of whether the needs of the child have increased or
decreased since entry of the prior order.
Id.
In the case
sub judice, the trial court did make the necessary
finding that the children's needs had increased. A review of the
evidence presented at the hearing also reveals that this finding
was supported by competent evidence.
See Coble, 300 N.C. at 714,
268 S.E.2d at 190. At the time of the original support judgment,
the children did not have day care expenses; but plaintiff's return
to school in North Carolina necessitated the enrollment of the
children in day care and resulted in an additional child care cost
of $800.00 per month. Based on these facts, the trial court's
order, concluding that there existed a substantial change in
circumstances warranting modification of the prior child support
award, must be affirmed.
Affirmed. Judges MARTIN and GEER concur.
Report per Rule 30(e).
Footnote: 1