ISAAC G. FORESTER,
Plaintiff,
v
.
Wilkes County
No. 01 CVD 1248
TAMARA B. FORESTER,
Defendant.
McElwee Firm, P.L.L.C., by William H. McElwee, IV, for
plaintiff-appellant.
Respess & Jud, by W. Wallace Respess, Jr., and Marshall
Hurley, P.L.L.C., by Marshall Hurley, for defendant-appellee.
ELMORE, Judge.
Isaac G. Forester (plaintiff) appeals an order dismissing his
motion seeking modification of his monthly child support
obligations to his former wife, Tamara B. Forester (defendant).
For the reasons discussed herein, we affirm.
Plaintiff and defendant were married on 24 June 1979,
separated on 13 May 2000, and divorced on 2 October 2001. Two
children were born of their marriage, Andrew Isaac Forester (Drew)
on 4 April 1985, and Benjamin Stewart Forester (Ben) on 26 November
1987. On or about 3 July 2001, plaintiff filed a complaint seekingabsolute divorce, joint legal and physical custody of the children,
and calculation of the parties' respective child support
obligations. Defendant answered and counterclaimed, seeking
primary custody of the children and an award of child support
consistent with the presumptive North Carolina child support
guidelines.
On 5 February 2002, plaintiff and defendant entered into a
consent judgment, which provided in pertinent part as follows:
1. The Plaintiff and the Defendant shall continue to
have joint legal and physical custody of the minor
children of this marriage.
. . . .
3. The Plaintiff shall pay to the Defendant the sum of
$700.00 per month commencing on February 1, 2002,
and on each and every month thereafter for so long
as the minor children reside primarily with the
Defendant. . . .
. . . .
On 30 September 2002, plaintiff filed a motion seeking
modification of the consent judgment's child support provisions.
(See footnote 1)
In his motion, plaintiff asserted that because the children were
“actually residing in the home of defendant” at the time the
consent judgment was entered, his child support obligation was
calculated using North Carolina child support worksheet A.
Plaintiff contended that in the several months prior to his filing
the motion, the children had been spending “a more substantialamount of time with the Plaintiff or with third-parties,” with the
result being that the children were by then spending less than half
of their nights at defendant's home. Plaintiff argued this
constituted a change of circumstances justifying recalculation of
his support obligation, using North Carolina child support
worksheet “B” rather than worksheet “A”.
(See footnote 2)
On 12 December 2002, the trial court heard arguments on
plaintiff's motion, at which both parties were represented by
counsel. Plaintiff testified that when he entered the consent
order in February 2002, he “was living about eight miles out of
town . . . and the boys were spending very few nights with [him].”
Plaintiff testified that he thereafter bought a house in town, and
that as a result “[t]he children have started spending more time
with [him].” Plaintiff then testified that he kept a log of where
each child spent every night from April 2002 through November 2002.
Reading from the log, plaintiff testified that from April 2002
until he filed his motion in September 2002, Drew spent 30 percent
of the nights with plaintiff, thirty-one percent with defendant,
and thirty-nine percent with third parties. During the same
period, plaintiff testified that Ben spent thirty-three percent of
the nights with plaintiff, forty-five percent with defendant, and
twenty-two percent with third parties. Plaintiff testified that if
these numbers were extrapolated over the course of a year, theywould result in the children spending over 123 nights with
plaintiff.
Following plaintiff's presentation of evidence, the trial
court granted defendant's motion to dismiss. On 3 January 2003,
the trial court entered an order, with findings of fact, in
pertinent part, as follows:
3. The parties entered into a Consent Judgment . . .
which was filed on the 5th day of February, 2002.
. . . .
5. The Consent Order provides that the Plaintiff shall
pay to the Defendant the sum of $700.00 per month
on each and every month for so long as the minor
children reside primarily with the Defendant.
. . . .
7. The Court specifically finds that while the minor
children have spent some additional overnights,
they continue to reside primarily with the
Defendant.
8. The Court is bound by the plain language of the
[consent order] which states that so long as the
minor children reside primarily with the Defendant,
the Plaintiff shall pay the sum of $700.00 per
month. The minor children continue to reside
primarily with the Defendant.
Based upon these findings of fact, the trial court concluded:
1. That there has not been a substantial change within
the plain reading of the [consent order].
2. That the Plaintiffs' [sic] Motion should be dismissed.
From the trial court's order dismissing his motion to modify
his child support obligation, plaintiff appeals.
Plaintiff first asserts the trial court failed to apply the
standard for modifying child support orders set forth in N.C. Gen.
Stat. § 50-13.7 and instead ruled that modification of plaintiff'schild support obligations was precluded solely by the consent
order's language. This assignment of error is without merit.
North Carolina General Statue § 50-13.7(a) (2001) provides
that a court order awarding child support “may be modified or
vacated at any time, upon motion in the cause and a showing of
changed circumstances by either party . . . .” “When the parties
have entered into a consent order providing for the custody and
support of their children, any modification of that order must be
based upon a showing of a substantial change in circumstances
affecting the welfare of the child.” Woncik v. Woncik, 82 N.C.
App. 244, 247, 346 S.E.2d 277, 279 (1986) (emphasis added). The
party moving for modification of such an order bears the burden of
showing such a change of circumstances. Id.
In the instant case, plaintiff has presented evidence which,
at best, tends to show that the children are spending more nights
in his home than they were when the consent order establishing his
child support obligations was entered. This evidence does not,
however, support a contention that defendant's home is no longer
either child's primary residence. Plaintiff's own evidence
indicates that each child continues to spend a greater percentage
of nights at defendant's home than at his. The only evidence
regarding the frequency of overnight visits with third parties at
the time the consent order was entered was plaintiff's testimony on
cross-examination that the children spent the night with friends
then, and continue to do so. While it may be true that both
children are spending fewer nights at defendant's home than theywere when the consent order was entered, we conclude that plaintiff
has failed to carry his burden of showing that this constitutes a
substantial change in circumstances affecting the welfare of either
child.
Our review of the transcript reveals that, at the close of
plaintiff's evidence, defendant's trial counsel moved to dismiss
plaintiff's motion on the following grounds:
. . . I would move to dismiss the motion for [sic] that
there hasn't been a showing of a change of circumstances
. . . . [W]hile there may have been some increases in the
amount of time that [plaintiff] is able to spend with his
sons, I do not believe that it rises to the level of a
substantial change of circumstances affecting the best
interests of the minor children, which I submit to you is
the standard.
. . . .
In granting defendant's motion to dismiss from the bench, the
trial court stated as follows:
I think I get the gist of [plaintiff's counsel's]
argument, that the parties, by their bargaining, do not
remove from the Court the authority to do whatever is in
the best interest of these children, and obviously that's
correct. . . . I think the Court is bound by the language
in the Order as to whether there's been a substantial and
material change of circumstances justifying a
modification of the [consent order].
. . . .
Moreover, in the order dismissing plaintiff's motion, the trial
court concluded as a matter of law “[t]hat there has not been a
substantial change within the plain reading of the [consent
order].” We conclude from the foregoing that the trial court
applied the proper standard in dismissing plaintiff's motion to
modify his child support obligations on the grounds that plaintifffailed to carry his burden of showing a substantial change in
circumstances affecting the children's welfare. Woncik, 82 N.C.
App. at 247, 346 S.E.2d at 279. The trial court therefore
correctly declined to order that plaintiff's child support
obligations be recalculated using worksheet “B” of the child
support guidelines. McGee v. McGee, 118 N.C. App. 19, 26, 453
S.E.2d 531, 536, disc. review denied, 340 N.C. 359, 458 S.E.2d 189
(1995) (modification of a child support order involves a two step
process, in which the court must first determine that a substantial
change of circumstances has occurred before applying the child
support guidelines to calculate the proper amount of support).
Because we hold that the trial court properly dismissed
plaintiff's motion to modify the provisions of the consent order
concerning his child support obligations, we need not address
plaintiff's remaining assignments of error.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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