Appeal by defendant from orders entered 10 October 2005 and 24
January 2006 by Judge William A. Leavell, III in Watauga County
District Court. Heard in the Court of Appeals 23 January 2007.
Nancy M. Rivenbark for plaintiff-appellee.
Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene,
Alyssa M. Chen, and Donald L. Beci, for defendant-appellant.
James Robert Webster (defendant) appeals an order from the
trial court entered 10 October 2005 (COA06-556) and an order
entered 24 January 2006 (COA06-855) that, in conjunction, granted
Dawn Elizabeth Webster (plaintiff), inter alia, attorney's fees,
reimbursement for all uncompensated medical/dental expenses, and a
modification in custody and support arrangements. We consolidate
defendant's appeals, and dispose of the appeals in one opinion.
See N.C.R. App. P. 40 (Court on its own initiative may consolidate
cases which involve common questions of law). This Court affirms
as to the custody modification, attorney's fees, and medical/dental
expense, but vacate and remand as to the modification of support. Defendant and plaintiff were married in April 1990. They had
three children, Alexander, born 8 September 1990, Jamison, born 22
December 1993, and Duncan, born 23 November 1996. The parties
divorced in Idaho on 14 January 2002. The Idaho order awarded a
divorce and accepted the parties' stipulations as to property and
financial settlement, custody and visitation, child support, and
spousal support to plaintiff. Both parties received joint legal
custody of the minor children, and plaintiff received primary
physical custody subject to defendant's visitation rights.
At the time of the Idaho order plaintiff had moved to Watauga
County, North Carolina, with the minor children. After the
divorce, defendant took a six-month contract position in
Scottsdale, Arizona. He worked in Arizona during the week and then
returned to Idaho for the weekends. Later, he worked in San Diego,
California, for a two week period. Defendant then took a full-time
position with Nike, moved to Portland, Oregon, and sold his home in
Idaho. Defendant ultimately left Nike to take a position allowing
him to work at home, facilitating his move to Watauga County, North
Carolina, in March 2005.
Before defendant had relocated to North Carolina, plaintiff
filed her complaint on 4 October 2004. She asked the trial court
to modify the custody provisions of the Idaho order by providing
that the minor children be returned to her on Saturday rather than
Sunday following visits with defendant in Oregon. Plaintiff also
sought enforcement of the Idaho order regarding the verification of
defendant's income and life insurance policy. Additionally, sheclaimed complications in reimbursement between the parties as it
pertained to health insurance and travel expenses. Finally, she
requested that the North Carolina Child Support Guidelines be
applied to determine defendant's support obligations.
Plaintiff sought a further modification of the summer
visitation schedule based on the changed circumstances of (1)
defendant moving to Watauga County; (2) plaintiff remarrying in
June 2005; and (3) plaintiff relocating to Johnston County, North
Carolina. She requested that the trial court change the Idaho
order regarding summer visitation to a more traditional
arrangement because of the parties' proximity to one another.
Defendant, in his motion in the cause, also alleged changed
circumstances: (1) he had moved to Watauga County and that
plaintiff was planning on remarrying; (2) he planned on making
Watauga County his permanent home and had obtained a four bedroom
house suitable for the minor children; (3) he had remarried in May
of 2004 and his spouse was willing and able to assist in the care
of the children; (4) the oldest child wished to reside with him;
and (5) plaintiff and her intended spouse (who has three children
of his own) did not have a suitable home for a family of six
children and two adults.
The trial court's 10 October 2005 order contained the
following terms: (1) plaintiff was awarded sole legal and physical
custody of the minor children, subject to visitation by defendant;
(2) the parties were to provide each other with specific income
documentation within five days, and to calculate child supportusing Worksheet A of the North Carolina Child Support Guidelines;
(3) defendant was to pay all uninsured and un-reimbursed medical,
prescription, eye care, dental and orthodontic care, and
psychiatric, psychological and counseling costs incurred on behalf
of the minor children; (4) defendant was to pay all plaintiff's
reasonable costs and attorney's fees; and (5) the Idaho Decree was
to remain in full force and effect except as modified by the order.
In its 24 January 2006 order, the court restated the
provisions in the previous order regarding dental/medical expenses
and, after making additional findings, entered the amount of
attorney's fees to be awarded to plaintiff.
The issues in this case are: (1) whether the trial court
properly modified the custody order of the parties' minor children;
(2) whether the trial court properly calculated child support; and
(3) whether the trial court improperly awarded attorney's fees to
In child custody cases, the trial judge is vested with broad
discretion, and that discretion must be exercised to serve the
welfare and needs of the children. Woncik v. Woncik, 82 N.C. App.
244, 247, 346 S.E.2d 277, 279 (1986). Absent a clear showing of
abuse of discretion, the trial judge's decision regarding custody
will not be upset on appeal, provided that the decision is based on
proper findings of fact supported by competent evidence. Id.
Child support orders are also reviewed under an abuse of
discretion standard. Holland v. Holland, 169 N.C. App. 564, 567,
610 S.E.2d 231, 234 (2005). A failure to follow the North CarolinaChild Support Guidelines without proper findings of fact
constitutes reversible error. Id. This Court applies a manifest
abuse of discretion standard when reviewing the allocation of
medical expenses for the parties' children. Id. at 571-72, 610
S.E.2d at 236-37.
As to attorney's fees, whether the statutory requirements have
been met is a question of law and is reviewed de novo. Hudson v.
Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 724 (1980). When the
statutory requirements have been met, the amount of the award is in
the discretion of the trial judge and may only be reversed upon
abuse of discretion. Id.
Defendant argues that the trial court failed to make a
conclusion of law that the changed circumstances affect the welfare
of the children. We disagree. After the parties have entered into
a consent order providing for 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
, 82 N.C. App. at 247, 346 S.E.2d at
279. The party moving for modification bears the burden of showing
that a change has occurred, and findings based on competent
evidence are conclusive on appeal, even if there is evidence to the
Defendant first argues that the trial court failed to make a
conclusion of law that the changed circumstances affected the
welfare of the child. The trial court, however, need not use theexact phrase 'affecting the welfare of the child[.]' Karger v.
, 174 N.C. App. 703, 709, 622 S.E.2d 197, 202 (2005). This
Court, instead, examines the entire order in determining whether
the judge made proper findings. Id
, this Court upheld a custody modification without
the exact language 'affecting the welfare of the child' because
the trial court laid out a sequential order of facts showing a
change in circumstances, and a finding that the child's school work
had suffered. Id
. This provided the nexus between the
substantial change in circumstances and the [e]ffect on the child's
. Most important to the Karger
Court was the trial
judge's finding that '[a] substantial change of circumstances that
the minor child has occurred since the [initial order].'
. at 709-10, 622 S.E.2d at 202.
Although the trial court in the instant case did not use the
word affect, it did make sequential finding of facts showing a
change in circumstance and found that these changes justify the
modifications in custody. The only justification for a
modification in a custody order is a finding that substantial
changes affect the welfare of the children. Woncik
, 82 N.C. App.
at 247, 346 S.E.2d at 279. Thus, taking the record as a whole, it
is clear that the trial judge found a substantial change in
circumstances that affected the welfare of the children. As to a
substantial change in circumstances, the trial judge found:
11. Prior to moving to North Carolina and
subsequent to the parties' divorce, the
[d]efendant has moved frequently. He has
resided in approximately six (6)different locations since the parties'
divorce. In early 2005, he resided in a
camper trailer in or around the
Washington, DC area. This pattern of
frequent moving existed during the
parties' marriage and the [d]efendant is
again relocating at this time although he
testified that he does not know to where
he is relocating.
. . .
13. The [d]efendant also has a history of
changing employers on a frequent basis.
He has changed jobs eight (8) times in
the past approximate five and one-half
. . .
18. The [d]efendant allows his current wife,
and did allow her prior to their
marriage, to mete punishment to the minor
children and at times her punishment has
. . .
26. The [p]laintiff and her current husband
have a residence appropriate for
themselves and their collectively six (6)
children. They are able to provide a
nurturing, stable and loving environment
to meet the children's physical,
emotional and spiritual needs.
. . .
29. There has been a substantial and material
change in circumstances since the entry
of the Idaho Order that warrants
modification of same as set forth herein.
As to a finding that the substantial change in circumstances
affects the welfare of the children the trial court found:
15. . . . [T]he [d]efendant has made return
travel arrangements that have been
physically and emotionally stressful to
the children. . . .
. . .
28. . . . [T]he [d]efendant told the minor
children details of this pending matter
and on one occasion told Alexander that
the [p]laintiff would go to jail if she
did not obey a temporary Order.
29. There has been a substantial and material
change in circumstances since the entry
of the Idaho Order that warrants
modification of same as set forth herein.
30. It is in the best interests of the minor
children that they reside together in one
31. It is in the best interests and welfare
of the minor children that their sole
legal and physical custody be awarded to
the [p]laintiff and the [p]laintiff is a
fit and proper person to have their sole
and exclusive legal and physical care,
custody and control.
. . .
39. There has been a substantial and material
change in circumstances since the entry
of the Idaho Order that justify the
modification to same as set forth in the
decretory portion of this Order below.
. . .
41. It is in the best interests and general
welfare of the minor children that they
be placed in the sole and exclusive legal
and physical care, custody and control of
Although the trial court did not use the exact phrase affecting
the welfare of the child the trial judge did set out a sequential
order of facts showing a substantial change in circumstances and
made findings as to why those changes justify a modification of
custody. As stated in Karger
, to require buzz words would place
form over substance. Karger
, 174 N.C. App. at 709, 622 S.E.2d at202. Here, the trial judge cannot be said to have abused his
discretion in modifying the Idaho custody order.
Defendant next argues, without citing authority, that
meaningful appellate review is impossible because the trial judge
did not state which changed circumstance was the basis for
modifying the custody order. We reject this argument. The trial
court has broad discretion in modifying a custody order upon a
finding of a substantial change in circumstances that affect the
welfare of the children. Id
. at 708, 622 S.E.2d at 201. As
discussed above, the trial judge has made those findings and it
cannot be said that there has been an abuse of discretion.
Defendant argues that the trial court committed reversible
error in modifying the support order. We agree. A trial court's
support order is reviewed for abuse of discretion. Holland
N.C. App. at 567, 610 S.E.2d at 234. Failure to follow Child
Support Guidelines constitutes reversible error. Id
support calculations . . . are based on the parents' current
incomes at the time the order is entered
. (quoting N.C.
Child Support Guidelines 2005, Ann. R. N.C. 49). In short, the
trial court 'must determine [the parent's] gross income as of the
time the child support order was originally entered, not as of the
time of remand nor on the basis of [the parent's] average monthly
gross income over the years preceding the original trial.'
(See footnote 1)
, 169 N.C. App. at 568, 610 S.E.2d at 234 (quoting Lawrence
, 107 N.C. App. 140, 149, 419 S.E.2d 176, 182 (1992))
(explaining situations where deviation from this rule are
, the trial court expressly based the child support
on a prior year rather than the current year. Holland
, 169 N.C.
App. at 568, 610 S.E.2d at 235. In that case, this Court stated
that it may be permissible to use an earlier year where making
findings regarding a more recent year would be difficult to
determine so long as findings are made establishing that fact. Id
In the instant case, the court made no findings as to
defendant's current monthly gross income and we have no findings as
to why it was not used. Instead, the trial court left a blank
space to be filled in later once defendant's current income was
determined. Since the trial court failed to make findings as to
(1) defendant's 2004 gross monthly income or (2) why it is
necessary to use an earlier income, we vacate the order as to child
support and remand for further proceedings.
Defendant next argues, in the alternative, that if the trial
court did not err in calculating defendant's income for purposes of
modifying the support order, that the trial court impermissibly
delegated its authority to the parties to determine the amount of
support. Because we have found error in the use of non-currentincome in calculating child support, we need not fully address this
issue, but we do instruct the trial court to set the amount of
child support and not delegate such responsibilities to the
N.C. Gen. Stat. § 50-13.4(c) (2005) (stating that
[t]he court shall determine the amount of child support
Defendant next argues that the trial court erred in assigning
all uncompensated dental/medical expenditures to defendant. We
disagree. Absent a manifest abuse of discretion, a trial court's
decision in matters concerning the allocation of uninsured medical
or dental expenses, will not be disturbed on appeal and do not
depend on income calculations based on the Child Support
, 169 N.C. App. at 571-72, 610 S.E.2d at 236-
37. In Holland
, this Court reviewed a new provision of the Child
Support Guidelines. The Guidelines stated:
The court may
order that uninsured
medical or dental expenses in excess of $100
per year or other uninsured health care costs
(including reasonable and necessary costs
related to orthodontia, dental care, asthma
treatments, physical therapy, treatment of
chronic health problems, and counseling or
psychiatric therapy for diagnosed mental
disorders) be paid by the parents in
proportion to their respective incomes
N.C. Child Support Guidelines, 2005 Ann. R. N.C. 50 (emphasis
added). This Court held that the use of the word 'may' did not
in any way alter the trial court's discretion to apportion these
, 169 N.C. App. at 571, 610 S.E.2d at 236.
Consequently, uninsured medical and dental expenses are to be
apportioned between the parties in the discretion of the trialcourt. Lawrence
, 107 N.C. App. at 150, 419 S.E.2d at 183. This
Court went on to say that:
Because the Child Support Guidelines neither
require the trial courts to follow a certain
formula nor prescribe what the trial court
should or must do in this regard, it
follows that when the trial court does not
allocate uninsured medical or dental expenses
consistent with the parents' respective
incomes as revealed by the child support
worksheets, such an allocation would not
constitute a deviation from the Guidelines
that would have to be supported by findings as
to why application of the Guidelines would be
unjust or inappropriate.
, 169 N.C. App. at 571, 610 S.E.2d at 236 (citing N.C. Gen.
Stat. § 50-13.4(c) (2003)). Defendant has not alleged, nor does
the record reveal, a manifest abuse of discretion. Thus, the
ruling of the trial court regarding medical expenses is upheld as
there is no requirement to make specific findings based on ability
(See footnote 2)
In arguing in support of the trial court's award of attorney's
fees plaintiff, in part, relies on an order entered by the trial
judge after the appeal was perfected. Defendant argues that the
trial court was divested of jurisdiction because of this appeal.
Thus, before addressing the issue of attorney's fees, we must
decide whether the trial court had jurisdiction to enter the award
of attorney's fees. N.C. Gen. Stat. § 1-294 (2005) provides than when an appeal is
perfected, it stays all further proceedings in the court below upon
the matter embraced therein. In light of this statute, the general
rule is that 'an appeal from a judgment entered in the [trial
court] suspends all further proceedings in the cause in that court,
pending the appeal.' Lowder v. Mills, Inc
., 301 N.C. 561, 580,
273 S.E.2d 247, 258 (1981) (citation omitted). The trial court,
however, retains jurisdiction to take action which aids the appeal
and to hear motions and grant orders, so long as they do not
concern the subject matter of the suit and are not affected by the
judgment appealed from. Faulkenbury v. Teachers' & State
Employees' Retirement System
, 108 N.C. App. 357, 364, 424 S.E.2d
420, 422-23 (1993).
In Surles v. Surles
, 113 N.C. App. 32, 42, 437 S.E.2d 661, 666
(1993), this Court concluded that a trial court had jurisdiction to
award attorney's fees after an appeal had been brought. In that
case, the trial judge had made an oral announcement expressly
reserving the issue of attorney's fees at the time it had rendered
its judgment as to custody matters. Id
. at 43, 437 S.E.2d at 667.
The trial court's subsequent order regarding attorney's fees, which
came after the perfected appeal, was not void for lack of
jurisdiction because the order 'conformed substantially' with the
oral announcement. Id
In the instant case, the trial judge reserved judgment on
attorney's fees and entered an award that conformed substantially
with that announcement. As to reserving judgment, the trial courtstated that it shall determine within ten (10) days . . . the
reasonable costs and fees incurred to be paid by the [d]efendant
and this sum shall be reduced to Judgment
in favor of the
[p]laintiff. (Emphasis added.) Clearly, this language indicates
that the trial judge had yet to make a judgment as to the amount
of attorney's fees, and as such, the trial court retained
jurisdiction. The latter order conformed substantially to the
prior order since it too dealt with the award of attorney's fees.
Thus, the final judgment for attorney's fees was entered on 24
January 2006. Accordingly, the findings of facts and conclusions
of law in both orders are properly before this Court.
The award of attorney's fees in child custody and/or support
actions is governed by N.C. Gen. Stat. § 50-13.6 (2005). Under
this statute, a trial judge has discretion to award reasonable
attorney's fees when: (1) the party receiving the fees is an
interested party acting in good faith; (2) with insufficient means
to defray the expense of the suit; and (3) the judge has found as
a fact that the party ordered to pay the fee has refused to provide
the support. Whether the statutory requirements have been met is
a question of law and is reviewed de novo
, 299 N.C. at
472, 263 S.E.2d at 724. When the statutory requirements have been
met the amount of the award is in the discretion of the trial judge
and may only be reversed upon abuse of discretion. Id
As to the first element, defendant does not contest that
plaintiff is an interested party acting in good faith. We alsonote that the trial judge made such a finding. We therefore
conclude the first element is established.
We also find the trial court's conclusion that plaintiff was
with insufficient means to defray the cost of the litigation is
supported by competent evidence. First, the judge found that
plaintiff received $500.00/month in alimony and $1,412.00 in child
support. Second, that plaintiff's parents assisted her financially
during the time she was in school and living with them. Third,
that plaintiff's parents paid her attorney's fees for the trial
court action out of their retirement funds.
Under Brower v. Brower
, 75 N.C. App. 425, 429, 331 S.E.2d 170,
173-74 (1985), there must also be competent evidence in the record
of the paying party's income to support the finding that the other
party was without sufficient means to defray the cost of
litigation. The testimony of defendant before this Court reveals
that defendant had a 2003 income of at least $117,430.00 and a
gross income for 2004 of $93,000.00, $87,000.00, or $87,424.00. In
all, there is competent evidence upon which to determine that
plaintiff was without sufficient means to defray the cost of
The final element to be eligible for attorney's fees under the
statute is whether the paying party has refused to provide support.
Our Supreme Court, however, has held that this requirement is not
applicable where a party seeking attorney's fees is pursuing
support actions. Stanback v. Stanback
, 287 N.C. 448,
462, 215 S.E.2d 30, 40 (1975). The last element need only beestablished in actions limited to child support. Id
plaintiff's complaint in this case sought modification of both
custody and support, she need not establish the element and the
trial court did not err in failing to make such a finding. Having
found the first two elements established and the third inapplicable
to the instant case, we reject defendant's argument that the trial
court erred in applying the statute.
Defendant also argues that the trial judge made no conclusions
of law relating to the award. We disagree. In the 10 October 2005
order, the trial court made the conclusion of law that reasonable
attorney's fees . . . shall be awarded to plaintiff.
Additionally, in the 24 January 2006 order, the trial court made a
conclusion of law that [p]laintiff is entitled to an award of
reasonable attorney[']s fees incurred in prosecuting her action.
These are conclusions of law and defendant's argument is rejected.
Defendant's additional argument that these conclusions of law are
not supported by competent evidence is also without merit.
Defendant's final argument is that the trial court erred in
failing to make a finding that defendant had the ability to pay
plaintiff's attorney's fees. Defendant cites Brower
, a custody
only action, for this proposition. Brower
made no such holding but
instead held, in relevant part, that the trial court's finding of
the wife's inability to defray attorney's fees was not supported by
competent evidence. Brower
, 75 N.C. App. at 429-30, 331 S.E.2d at
175. The Brower
Court reached this holding on the ground that there
was only competent evidence of her income in the record, and none
as to the husband's. Id
. at 430, 331 S.E.2d at 174. Nowhere in
did this Court state that a finding must be made that the
party responsible for the payment of attorney's fees must have the
ability to pay. Instead, the Court stated that we find nothing in
the record concerning the husband's gross income for any year.
. As discussed above, we have already found competent evidence
in the record of both parties' incomes to support the trial court's
finding that plaintiff was unable to defray the cost of litigation.
Defendant has cited no competent authority, nor has our
research uncovered, any requirement that a trial court make a
finding of ability to pay before attorney's fees may be awarded in
a custody and support action. Indeed, the plain language of N.C.
Gen. Stat. § 50-13.6 contains no such requirement and we are
unwilling to create one. We overrule this assignment of error.
In summary, the trial court's orders in No. COA06-556 and No.
COA06-855 are affirmed with respect to the custody modification,
the medical/dental expense modification, and the award of
attorney's fees, but we vacate and remand the trial court's
modification of support set out in No. COA06-556.
Affirmed in part; vacated and remanded in part.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).