No. 05 CVD 1656
Willie M. Kennedy, for defendant-appellant.
Monte Johnson (defendant) appeals an order denying his motion to modify child support. Defendant executed a Voluntary Support Agreement (VSA) that was entered by the court 31 August 2005. This VSA required him to pay $416.00 monthly beginning 1 July 2005. On 2 November 2005 defendant filed a motion to decrease his child support obligation, asserting that he had to change jobs because the job I had at the time the support calculation was made has laid me off two times which made job security uncertain. My new job . . . pays less and provides lower benefits, but it is a secure position. After a contested hearing on this motion, the trial court, in an order entered 28 April 2006, denied the motion to decrease. The trial court made the following findings of fact: 1. That at the time of the entry of the Voluntary Support Agreement on August 31, 2005, the Defendant was gainfully employed at Johnson Controls.
2. The Defendant has an embalming license and fork lift certification. He was also working at Johnson Home of Memory at the time the Order (VSA) was entered.
3. The Defendant was laid off from Johnson Controls where he had been employed for approximately nine (9) years. The Defendant was then called back. A few weeks later, the Defendant voluntarily left his employment with Johnson Controls and went to work at a lower paying job. . . . During the approximately nine (9) years with Johnson Controls, there had been only two or three layoffs.
Upon these findings, the trial court concluded that defendant's separation from his previous employment with Johnson Controls was a voluntary separation and denied the motion to decrease.
On appeal, defendant's central contention is that the trial court misapplied the law in that it did not consider whether his reduction in income was done with the purpose of deliberately depressing his income. Defendant further asserts that the trial court erroneously imputed income to him based upon his capacity to earn because it did not find that he depressed his income to avoid his child support obligation. We disagree.
This Court has summarized the pertinent law as follows:
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 changed circumstance which alone can justify a modification of a child support award. Avoluntary 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. In determining whether the party has sustained a decrease in income, the party's actual earnings are to be used by the trial court if the voluntary decrease was in good faith. If the voluntary decrease in income is in bad faith, the party's earning capacity is to be used by the trial court in determining whether there has in fact been a decrease in income. The burden of showing good faith rests with the party seeking a reduction in the child support award.
Mittendorff v. Mittendorff, 133 N.C. App. 343, 344, 515 S.E.2d 464, 466 (1999) (citations omitted); see N.C. Gen. Stat. § 50-13.7(a) (2005)(modification of child support obligation upon showing of changed circumstances).
Here, defendant concedes that his decrease in income was voluntary. The record reveals that defendant made no showing whatsoever before the trial court that the needs of the child had decreased or changed in any way. On appeal, defendant does not address the requirement that the child's needs changed where child support obligors seek a decrease based upon a voluntary decrease in income. Even assuming that the reduction in defendant's income is considered substantial and in good faith, there has been no showing that the needs of the child have decreased. Consequently, consistent with the holding in Mittendorff, supra, we cannot conclude that the trial court erred by denying defendant's motion to decrease.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).
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