An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1353


Filed: 21 October 2003


SUZANNE EVERLY                        Buncombe County
AND                                No. 01 CVD 2338


    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
    The determination of whether a substantial change of circumstances has occurred is a conclusion of law. Johnson v. Adolf, 149 N.C. App. 876, 878, 561 S.E.2d 588, 589 (2002).
Footnote: 2
    This requirement differs from the case l aw under the pre- guideline statutory scheme, see id. at 289 n.1, 268 S.E.2d at 237 n.1, which further demanded that the trial court “make findings of specific facts regarding actual past expenditures and present reasonable expenses, in order to determine the 'reasonable needs' of the child,” Holder v. Holder, 87 N.C. App. 578, 580, 361 S.E.2d 891, 892 (1987); see Walker v. Tucker, 69 N.C. App. 607, 613, 317 S.E.2d 923, 927 (1984).

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