Appeal by defendant from order entered 19 April 2007 by Judge
Joseph E. Turner in District Court, Guilford County. Heard in the
Court of Appeals 9 January 2008.
Hatfield & Hatfield, by Kathryn Hatfield, for
plaintiff-appellee.
Rebecca Perry, PLLC, by Rebecca Perry for defendant-appellant.
STROUD, Judge.
Defendant appeals from an order dismissing his motion to
modify child support. This appeal presents two legal questions:
(1) whether, when an order for child support has previously been
modified by subsequent orders, the changes in circumstances
necessary to support a new motion for modification should be
determined from the date of the original order or from the date of
a subsequent modification, and (2) whether an allegation of a
change in the parents' income, without more, is sufficient to
support a motion to modify child support.
For the reasons that follow, we hold that: (1) the changes in
circumstances necessary to support a modification should bedetermined from the date of the most recent child support order
which addresses the obligation in question, and (2) an allegation
of a change to the parties' income, without more, is not sufficient
to support a motion to modify child support. Accordingly, we
affirm the trial court's order dismissing defendant's motion to
modify child support.
I. Background
On or about 20 April 1993, the parties' marriage was dissolved
by a judgment of divorce entered in the Commonwealth of
Massachusetts. The divorce judgment contained provisions regarding
child custody and child support (hereinafter, “original child
support order”). The original child support order was modified by
a judgment entered 2 January 1996 in Probate and Family Court,
Worcester County (hereinafter, “1996 modification order”).
(See footnote 1)
The
original child support order and the 1996 modification order were
further modified by consent of the parties in a judgment entered on
or about 22 May 2000 (hereinafter, “2000 modification order”). The
2000 modification order provided that plaintiff would be able to
relocate to North Carolina with the children, established a
visitation schedule for the children with defendant, and obligated
defendant to pay child support twice monthly to plaintiff in the
amount of $1,083.33. It further stipulated “[i]n all otherrespects the prior judgments of the court shall remain in full
force and effect.”
On or about 14 April 2005, plaintiff filed a complaint
(See footnote 2)
(hereinafter, “2005 motion”) in Worcester, Massachusetts. The 2005
motion requested modification of the original child support order,
alleging that the incomes earned by the parties had changed and
that two of the children were of college age. The 2005 motion
requested “re-determining child support in accordance with the
Mass[.] Child Support Guidelines,” and college expenses. The trial
court entered a judgment by consent of the parties on or about 4
October 2005 (hereinafter, “2005 modification order”),
(See footnote 3)
modifying
the original child support order to include defendant's obligation
for fifty percent (50%) of each child's college expenses up to an
agreed maximum and allocating responsibility for payment of various
medical and transportation expenses for the children. The 2005
modification order did not change the monthly child support
obligation which had been stated in the 2000 modification order.
On 4 January 2006, defendant registered the 2000 modification
order and filed a verified Motion for Modification of Child Support
in Guilford County District Court. The motion alleged: Since the entry of the May 22, 2000 order,
there has been a substantial and material
change of circumstances affecting the welfare
of the minor children as follows:
a. The Plaintiff has relocated to the State
of North Carolina;
b. The Defendant has relocated to the State
of Florida;
c. Two of the parties' minor children have
reached the age of eighteen and have graduated
from high school and are currently enrolled in
college;
d. Defendant has two (2) additional children
from his subsequent marriage;
e. On information and belief, the parties'
incomes have changed significantly since the
entry of the order.
On the basis of the allegation of changed circumstances, defendant
requested “[t]hat the Court enter an order modifying Defendant's
child support obligation in accordance with the North Carolina
Child Support Guidelines[.]”
(See footnote 4)
On 6 February 2006, plaintiff filed a verified Objection to
Registration, alleging that the original child support order, a
“Consent Order of May 21, 2001”
(See footnote 5)
and the 2005 modification order
should also be registered with the 2000 modification order. On 26April 2006, defendant amended his motion for modification of child
support to include a request for the District Court, Guilford
County to “assume jurisdiction of this matter[.]” On 17 October
2006, plaintiff moved to dismiss defendant's motion for
modification alleging that the relevant date from which to
determine if material changes had occurred was 4 October 2005, and
that none of the changes alleged by defendant had occurred after
that date. On 24 October 2006, the trial court issued a pre-trial
order amending the court file to include the 2005 modification
motion as well as the 2005 modification order as the most recent
support order.
The trial court heard the motion to modify on 10 April 2007.
The trial court dismissed defendant's motion for modification by
order entered 19 April 2007, on the grounds that the 2005
modification order was the relevant starting point for determining
a material change in circumstances, and that defendant had alleged
no material changes which had occurred since that date. Defendant
appeals.
II. Standard of Review
As an initial matter we must determine the standard of review.
We note that defendant did not include a standard of review in his
brief as required by Rule 28(b)(6) of the North Carolina Rules of
Appellate Procedure. Though we could impose a monetary penalty for
this oversight, we elect instead to admonish defendant's counsel to
exercise care when preparing briefs submitted to this Court.
See
State v. Parker, ___ N.C. App. ___, ___, 653 S.E.2d 6, 8 (2007). Defendant contends that his motion to modify alleges
sufficient facts to survive a motion to dismiss for failure to
state a claim under the current rules of notice pleading.
Defendant also contends that the trial court treated his motion as
a motion for summary judgment, except that the trial court
improperly failed to give the parties the opportunity to present
pertinent material as required by N.C. Gen. Stat. § 1A-1, Rule
12(b) and the trial court improperly viewed the evidence in the
light most favorable to the moving party
Though the order appealed from contains written “findings of
fact,” there is no indication in the record that the trial judge
heard testimony or received any affidavits or other evidence in the
cause.
(See footnote 6)
Generally, findings of fact are inappropriate where
testimony is not heard and evidence is not received, or where the
facts are not in dispute.
Craddock v. Craddock, ___ N.C. App.
___, ___, 656 S.E.2d 716, 720-21 (2008);
Atlantic Coast Mech., Inc.
v. Arcadis, Geraghty & Miller of N.C., Inc., 175 N.C. App. 339,
345, 623 S.E.2d 334, 339 (2006) (discussing similarities between a
motion to dismiss and summary judgment). However, in the case
subjudice, “[i]t is apparent from a careful review of the record that
the trial judge took judicial notice of previous orders in the
cause[,]”
In re M.N.C., 176 N.C. App. 114, 120, 625 S.E.2d 627, 632
(2006), which he outlined, along with the main points of
plaintiff's motion to dismiss, under the heading “Findings of
Fact.” It is also apparent from the record that the trial judge
summarily dismissed defendant's motion purely as a matter of law
based on the allegations in the motion to modify and judicial
notice of the previous orders in the court file.
Dismissal of a motion to modify child support when only the
allegations in the motion and the court file are considered by the
trial court is a summary procedure similar to judgment on the
pleadings.
See George Shinn Sports, Inc. v. Bahakel Sports, Inc.,
99 N.C. App. 481, 486, 393 S.E.2d 580, 583-84 (1990) (“A motion for
judgment on the pleadings is a summary procedure . . . which allows
a trial court to enter judgment when all the material allegations
of fact are admitted in the pleadings and only questions of law
remain.”),
disc. review denied, 328 N.C. 571, 403 S.E.2d 511
(1991);
Wilson v. Development Co., 276 N.C. 198, 206, 171 S.E.2d
873, 878-79 (1970) (Judgment on the pleadings is “limited to the
facts properly pleaded in the pleadings before [the court],
inferences reasonably to be drawn from such facts and matters of
which the court may take judicial notice.”). Like judgment on the
pleadings, dismissal of a motion to modify child support is
generally disfavored because it deprives the non-moving party of an
opportunity to present evidence and be heard in support of itsmotion.
See Groves v. Community Hous. Corp., 144 N.C. App. 79, 87,
548 S.E.2d 535, 540 (2001) (“Judgments on the pleadings are
disfavored in law[.]”);
see also Frank v. Funkhouser, 169 N.C. App.
108, 112-13, 609 S.E.2d 788, 792-93 (2005) (summary judgment should
be used sparingly because it deprives a party of a trial on the
merits). However, dismissal is appropriate where the motion to
modify is not supported by factual allegations which, if true,
would entitle the moving party to relief.
See Murrow v. Henson,
172 N.C. App. 792, 794, 616 S.E.2d 664, 665 (2005) (discussing a
12(b)(6) motion to dismiss). The factual allegations of a motion
to modify need not be detailed, but they must be “legally
sufficient to satisfy the elements of at least some legally
recognized claim.”
Atlantic Coast Mech., 175 N.C. App. at 345, 623
S.E.2d at 339 (citation and quotation marks omitted).
On appeal, dismissal of a motion to modify child support which
is based on the insufficiency of its allegations as a matter of law
without the weighing of facts is subject to
de novo review.
State
ex rel. Lively v. Berry, ___ N.C. App. ___, ___, 653 S.E.2d 192,
194 (2007). The allegations in the motion to modify are taken as
true and reasonable inferences from the allegations are drawn in
favor of the party seeking to modify child support.
See George
Shinn Sports, 99 N.C. App. at 486, 393 S.E.2d at 584 (“In ruling on
a motion [for judgment on the pleadings], the trial court must view
the facts and all permissible inferences therefrom in the light
most favorable to the nonmovant.”)
III. Analysis
Defendant contends the trial court erred in two ways: (1)
finding that the 2005 modification order was a modification of
child support and therefore the relevant starting point from which
a change in circumstances should be determined, and (2) failing to
find that the motion “lists certain events which would support a
finding of a change in circumstances.” We disagree.
A. Relevant Order
Defendant cites
Sikes v. Sikes, 98 N.C. App. 610, 391 S.E.2d
855 (1990),
aff'd, 330 N.C. 595, 411 S.E.2d 588 (1992), to contend
that “an order with regard to the parties' children that does not
fully address the particulars of child support cannot be
characterized as a prior child support order.” Therefore,
defendant argues, the order of 4 October 2005 which addressed only
college education and medical and transportation expenses cannot be
characterized as a prior child support order, and therefore cannot
be used as the starting point to determine changed circumstances on
a motion for modification.
However, we do not find defendant's case apposite to
Sikes.
In
Sikes, the defendant-appellant contended that the plaintiff-
appellee had not met her burden of showing changed circumstances
from the prior order, so that the trial court erred in granting her
an increase in child support. 98 N.C. App. at 614, 391 S.E.2d at
857. This Court overruled the defendant-appellant's assignment of
error, concluding that the prior order had been an
[i]nterim [o]rder clearly and unequivocally.
intended to facilitate the transfer of custodyto plaintiff pending an agreement between the
parties or a determination by the trial court
as to an appropriate level of support. The
[later] order . . . was manifestly the first
time a determination on the merits of the
issue of child support was made, and thus no
findings relating to a change in circumstances
were required.
Id. (citation and internal quotation marks deleted).
The case
sub judice is manifestly different from
Sikes. In
this case, neither party disputes that a determination on the
merits on the issue of child support was made by the original child
support order, the 1996 modification order, and the 2000
modification order. None of the orders in the record which were
issued prior to the motion for modification
sub judice indicate
that they were interim or temporary orders. Further, the
allegations of the 2005 motion, which resulted in the 2005
modification order, were not limited to college, medical, and
travel expenses but specifically raised the issue of “re-
determining child support in accordance with the Mass[.] Child
Support Guidelines.” The “re-determination” of monthly child
support was not reserved for later adjudication in the 2005
modification order but instead the monthly child support was
reaffirmed by implication. The 1996 modification order was not
included in the record, but the 2000 and 2005 modification orders
both state that provisions of the prior orders which were not
modified would remain in full force and effect. On this record, we
hold that the 2005 modification order addressed all aspects of the
child support obligation on the merits and was therefore thestarting point from which a showing of a change in circumstances
was necessary. The trial court did not err in so concluding.
B. Allegations of a Change in Circumstances
Neither defendant's motion to modify nor his appellate brief
expressly state what type of modification in child support he is
seeking, whether an increase or a decrease, so we must assume that
as the child support obligor, defendant was moving for a decrease
in his obligation. In his brief, defendant argues that an increase
or decrease in the income of either parent is a substantial change
sufficient for the trial court to recalculate child support, and
that “it is quite possible that the income of either or both
parties has increased or decreased significantly since entry of the
last relevant order, whether that is the May 22, 2000 order or the
October 4, 2005 order.”
(See footnote 7)
We disagree.
A order of child support can be modified only by “a showing of
changed circumstances[.]”
(See footnote 8)
N.C. Gen. Stat. § 50-13.7 (2005). Theburden of showing a change in circumstances is on the party seeking
to modify the order.
Wolf v. Wolf, 151 N.C. App. 523, 526, 566
S.E.2d 516, 518 (2002). If the trial court determines that a
substantial change in circumstances has occurred, it should proceed
to determine the correct amount of support.
McGee v. McGee, 118
N.C. App. 19, 26-27, 453 S.E.2d 531, 535-36,
disc. review denied,
340 N.C. 359, 458 S.E.2d 189 (1995).
Defendant cites no authority and we find none for the
proposition that a bare allegation of a significant change in the
parties' incomes is sufficient to support a motion to decrease
child support. To the contrary, absent a showing of a change in
the needs of the child, only a substantial and
involuntary decrease
in the non-custodial parent's income can justify a decrease in the
child support obligation.
Wiggs v. Wiggs, 128 N.C. App. 512, 515,
495 S.E.2d 401, 403,
disapproved of on other grounds,
Pulliam v.
Smith, 348 N.C. 616, 620, 501 S.E.2d 898, 900 (1998). All other
changes in income must be accompanied by facts showing that the
needs of the child have changed.
Mittendorff v. Mittendorff, 133
N.C. App. 343, 344, 515 S.E.2d 464, 466 (1999) (“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.” (Emphasis in original.));
Thomas v. Thomas,134 N.C. App. 591, 595-96, 518 S.E.2d 513, 516 (1999) (“[A]n
increase in income alone is not enough to prove a change of
circumstances to support [modification of] a child support
obligation.”);
Greer v. Greer, 101 N.C. App. 351, 355, 399 S.E.2d
399, 402 (1991) (“Without evidence of any change of circumstances
affecting the welfare of the child or an increase in need, however,
an increase for support based solely on the ground that the support
payor's income has increased is improper.”). Although the
allegations of a motion to modify child support need not include
detailed factual allegations regarding the changes in circumstances
to survive a motion to dismiss, we stress that in this case, the
only allegation was, in its entirety, that “on information and
belief, the parties' incomes have changed significantly since the
entry of the order.”
(See footnote 9)
Even if we assume that this allegation is
entirely true, this fact alone cannot survive a motion to dismiss.
We conclude that defendant's motion to modify failed to allege
facts which would support a finding of a substantial change in
circumstances which would have allowed the trial court to proceed
to modify child support. The trial court did not err when it
dismissed the motion. Accordingly, the 19 April 2007 order of the
trial court is affirmed.
Affirmed.
Judges HUNTER and CALABRIA concur.
Footnote: 1