Appeal by defendant from order entered 22 July 2005 by Judge
Ernest J. Harveil in Alamance County Superior Court. Heard in the
Court of Appeals 11 December 2006.
Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by
Benjamin D. Overby, for defendant appellant.
No brief filed for plaintiff appellee.
McCULLOUGH, Judge.
Defendant appeals from a child support order modifying
plaintiff's child support obligation. We remand for further
proceedings.
Robert Bachman Brown (“plaintiff”) and Vickie Curtis
(“defendant”) were married in 1997 and had one child who was born
in 1998. Plaintiff owed defendant child support in the amount of
$178.85 per week pursuant to a court order.
On or about 31 May 2005, plaintiff filed a motion to modify
the child support order. A hearing took place on 22 July 2005 and
the trial court entered an order suspending plaintiff's child
support payments from 22 July 2005 until 1 December 2005. Defendant appeals.
Defendant contends the trial court erred in modifying
plaintiff's child support obligation. We remand.
A North Carolina court order for support of a minor child “may
be modified or vacated at any time, upon motion in the cause and a
showing of changed circumstances by either party or anyone
interested subject to the limitations of G.S. 50-13.10.” N.C. Gen.
Stat. § 50-13.7 (2005). “Our Court has deemed modification of
child support a two-step process.”
Armstrong v. Droessler, ___
N.C. App. ___, ___, 630 S.E.2d 19, 21 (2006). “A trial court 'must
first determine a substantial change of circumstances has taken
place; only then does it proceed to apply the [North Carolina Child
Support] Guidelines to calculate the applicable amount of
support.'”
Id. (citation omitted). “The burden of demonstrating
changed circumstances rests upon the party moving for modification
of support.”
Id.
In the instant case, plaintiff filed a motion for modification
of his child support obligation because of a change in his ability
to pay. “In cases where the needs of the children have not
changed, a substantial change of circumstances can be found to
exist based on a parent's ability to pay.”
Id. We have explained:
“A substantial and
involuntary decrease in a
parent's income constitutes a changed
circumstance, and can justify a modification
of a child support obligation, even though the
needs of the child are unchanged. A
voluntary
decrease in a parent's income, even if
substantial, does not constitute a changedcircumstance which alone can justify a
modification of a child support award. A
voluntary and substantial decrease in a
parent's income can constitute a changed
circumstance only if accompanied by a
substantial decrease in the needs of the
child.”
Id. (citation omitted).
Here, the trial court's order suspending plaintiff's
obligation is not supported by sufficient findings of fact. The
court entered a order which merely stated that the “Court finds
[plaintiff's] motion to decrease is allowed. Child support
payments will be suspended until December 1, 2005 will be [sic]
reinstated at full amount, plus arrears.” In addition, the
transcript from the motion to decrease also does not include any
findings. The trial judge stated:
I agree that if you have a child, you don't
have the right to walk away from a job. But
during this period he [plaintiff] hasn't been
sitting at home. He's paid all of his support
payments, improved his resume, made himself
perhaps at an opportunity to, to make a good
living for himself and his son.
The trial court did not state whether the facts constitute a
substantial change of circumstances. The court did not determine
whether plaintiff voluntarily left his employment or if he was
involuntarily terminated. Therefore, without sufficient findings
we cannot perform a proper review. We remand for further
proceedings not inconsistent with this opinion, leaving within the
discretion of the trial court whether to receive additional
evidence.
Remanded.
Chief Judge MARTIN and Judge LEVINSON concur.
Report per Rule 30(e).
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