Opinion
No. COA02-1293
Filed 4 November 2003 This case not for publication
Appeal by defendant from order entered 4 April 2002, nunc pro tunc 5 March 2002, by Judge Jennifer M. Green in Wake County District Court. Heard in the Court of Appeals 13 October 2003.
Kathleen Murphy for plaintiff-appellee. Brooks, Stevens Pope, P.A., by Archie W. Futrell, III, for defendant-appellant.
Wake County No. 96 CVD 6082.
Defendant Edward Chapman appeals from the trial court's order increasing the amount of child support he must pay, denying his request to reduce his alimony payments to plaintiff Debra Chapman, and requiring defendant to pay plaintiff's attorney fees. Defendant argues on appeal that the trial court erred by: (1) concluding that a reduction in alimony was not justified; (2) concluding that defendant should pay more child support; (3) failing to deviate from the amount of child support ordered by the North Carolina Child Support Guidelines; (4) inaccurately calculating the amount of child support arrears; (5) establishing prospective child support; and (6) awarding attorney fees to plaintiff. After careful review of the record and briefs, we affirm.
Plaintiff and defendant were married on 12 May 1984 and separated on 1 September 1995. Two children, Kristin and Tyler, were born during the marriage. After the couple separated, the children lived with plaintiff. Plaintiff sued for child support, post-separation support, equitable distribution and attorney fees. Plaintiff filed financial affidavits for the years of 1996 and 1997 to support her complaint. In an order filed 3 April 1997, the trial court ordered defendant to pay $978 each month as child support. On 22 August 1997, the trial court ordered defendant to pay $800 monthly in alimony to plaintiff.
On 8 November 2000, plaintiff filed a motion seeking increased child support payments. Plaintiff cited an increase in the children's needs and an increase in defendant's income as grounds for the modification of defendant's child support payments. Plaintiff prepared and filed financial affidavits for the years of 2000 and 2001 detailing her income and expenses. Defendant denied plaintiff's allegation that an increase in child support was justified. Defendant also moved for a reduction in alimony on 4 April 2001, alleging that plaintiff's income had substantially increased. On 13 April 2001, defendant filed a motion requesting the trial court to vary from the North Carolina Child Support Guidelines. Defendant's motion was based upon his allegation that no changes sufficient to support a modification of the 3 April 1997 child support order had taken place. After a hearing on 4 and 5 February 2002, the trial court increased the amount of child support defendant must pay and ordered defendant to pay plaintiff's attorney fees and child support arrearage. The trial court denied defendant's motion to reduce the alimony payment ordered in the 22 August 1997 order. Defendant appeals.
Defendant first contends that the trial court erred by refusing to reduce alimony to be paid to plaintiff. Defendant argues that plaintiff's increased income was a substantial change in circumstances which justified the decrease he requested. We disagree.
A party requesting a modification or vacation of an alimony order must file a motion in the cause and show changed circumstances. See G.S. § 50-16.9(a) (2001). "The party moving for modification of an award of alimony has the burden of showing a change of circumstances." Gill v. Gill, 29 N.C. App. 20, 21, 222 S.E.2d 754, 755 (1976). "[T]he changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse's ability to pay." Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982) (citing Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980); Stallings v. Stallings, 36 N.C. App. 643, 244 S.E.2d 494, disc. rev. denied, 295 N.C. 648, 248 S.E.2d 249 (1978)), overruled on other grounds, Doub v. Doub, 68 N.C. App. 718, 315 S.E.2d 732 (1984). When considering whether a change in circumstances took place, "[i]t is appropriate for the trial court to consider whether the dependent spouse's financial need, that is, dependency, as it relates to the factors in G.S. § 50-16.5 has changed" from the need shown at the time of the original alimony award. Cunningham v. Cunningham, 345 N.C. 430, 437, 480 S.E.2d 403, 407 (1997); see Britt v. Britt, 49 N.C. App. 463, 474, 271 S.E.2d 921, 928 (1980) ("The present overall circumstances of the parties must be compared with the circumstances existing at the time of the original award in order to determine if there has been a substantial change."). "[A]limony is designed to enable the dependent spouse to achieve the standard of living she or he enjoyed during the marriage." Barham v. Barham, 127 N.C. App. 20, 30, 487 S.E.2d 774, 780 (1997), aff'd per curiam, 347 N.C. 570, 494 S.E.2d 763 (1998).
Defendant contends that because plaintiff's income now exceeds her reasonable expenses, plaintiff is no longer entitled to receive alimony payments. Defendant bases his assignment of error upon the trial court's use of plaintiff's 2001 financial affidavit. Defendant argues that the financial affidavit contains exaggerated expense amounts for plaintiff and the children and did not properly list all plaintiff's sources of income. In addition, defendant contends that the trial court erred by computing plaintiff's income from her paycheck stub instead of from her income tax return or W-2 forms.
Here, the order may only be reversed upon a showing that the trial court abused its discretion. See Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980). The trial court found that plaintiff's income had increased by 35% (from $27,000 to $41,200) since the entry of the 1997 alimony order and defendant's income had increased by 38% (from $68,256 to $108,676). Evidence of defendant's income included his testimony and a paycheck stub. Evidence of plaintiff's income included her testimony, a paycheck stub, and federal income tax forms, including a W-2 form. Plaintiff's affidavit listed her monthly expenses as $5,826. However, the trial court found that plaintiff's reasonable expenses were $3,476 monthly. The trial court found that plaintiff's expenses had increased by 25% since the expenses were considered in 1997. The trial court also found that plaintiff's increase in expenses was the result of an increase in the cost of maintaining her standard of living as determined in 1997 rather than an increase in her standard of living. Where conflicting evidence regarding expenses or income is presented, it is within the trial court's discretion as a finder of fact to determine which evidence is credible. See White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) ("Historically our trial courts have been granted wide discretionary powers concerning domestic law cases."). The trial court's findings of fact were all based upon sufficient evidence from the record and testimony of the parties at the hearing. In addition, the findings of fact support the trial court's conclusions of law. We find no abuse of discretion in the trial court's conclusion that no change of circumstances justifying modification of alimony had occurred. Therefore, this assignment of error is overruled. Defendant further assigns error to the trial court's finding that defendant had failed to rebut the presumption that there had been a substantial change in circumstances with regard to child support. Defendant asserts that plaintiff's 2001 financial affidavit exaggerated the children's financial needs. Defendant argues that plaintiff's evidence does not demonstrate a change in circumstances and res judicata prevents the trial court from increasing his child support payments. We disagree.
Modification of a child support order can occur only when an interested party demonstrates a change in circumstances. See G.S. § 50-13.7 (2001). This Court has outlined several ways to show a change in circumstances, including:
[A] substantial increase or decrease in the child's needs; a substantial and involuntary decrease in the income of the non-custodial parent even though the child's needs are unchanged; a voluntary decrease in income of either supporting parent, absent bad faith, upon a showing of changed circumstances relating to child oriented expenses; and, for support orders that are at least three years old, proof of a disparity of fifteen (15) percent or more between the amount of support payable under the original order and the amount owed under North Carolina's Child Support Guidelines based upon the parties' current income and expenses.
Wiggs v. Wiggs, 128 N.C. App. 512, 515, 495 S.E.2d 401, 403 (1998) (internal citations omitted), overruled on other grounds, Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). The moving party bears the burden of proving the change in circumstances by one of these methods. See Kelly v. Kelly, 77 N.C. App. 632, 636, 335 S.E.2d 780, 783 (1985). It is not necessary to show a"substantial change in circumstances" if the party requesting modification of the child support award shows that the previous child support order is more than three years old and the current amount of support dictated by application of the North Carolina Child Support Guidelines differs by at least fifteen percent from the amount stated in the previous order. Garrison v. Connor, 122 N.C. App. 702, 706, 471 S.E.2d 644, 647, disc. rev. denied, 344 N.C. 436, 476 S.E.2d 116 (1996). The three-year, fifteen percent rule is one method of showing a change in circumstances. Id.
Defendant argues that his evidence indicated that the children's reasonable needs had not increased sufficiently to show a change in circumstances. Additionally, defendant contends that his child support payments should be frozen at the level set by the 3 April 1997 order because of the principle of res judicata. Here, plaintiff presented her own testimony and her 2001 financial affidavit to show that the children's needs had grown tremendously in the four years since child support payments were ordered originally. In 1997, the children required $978 monthly for support to meet their reasonable needs. Here, the trial court found in its 2002 order that the children's monthly needs had increased to $1,306. Defendant testified and introduced evidence to show that plaintiff was overestimating her children's expenses. Res judicata would not apply here because evidence of a change in circumstances was shown, meaning that the facts of the case were different from the facts present at the time of the first child support order. See Wehlau v. White, 75 N.C. App. 596, 598, 331 S.E.2d 223, 225 (1985) (holding that a prior custody or child support decree is only res judicata as to the facts disclosed to the court at the time of the first order or decree), overruled on other grounds, Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). The trial court found plaintiff's evidence credible and based its decision to raise defendant's child support payments upon plaintiff's evidence. This credibility determination was a matter properly within the discretion of the trial court. The trial court did not abuse its discretion. This assignment of error is overruled.
Defendant also assigns error to the trial court's conclusion that the child support award should be determined without deviation from the North Carolina Child Support Guidelines. Defendant argues that the child support payment set by application of the Guidelines is unjust so that a deviation is necessary. We disagree.
G.S. § 50-13.4(c) states, in pertinent part:
The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.
G.S. § 50-13.4(c) (2001). An award of child support is reviewed on appeal for an abuse of discretion. See Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984). The trial court's decision to deviate from the Child Support Guidelines when determining child support payments must be supported by findings of fact justifying the variation and providing a basis for its award. See G.S. § 50-13.4(c). Here, the trial court awarded child support according to the North Carolina Guidelines using Child Support Worksheet A.
The trial court found that defendant's child support obligation was $1,356.35, assuming that plaintiff earned $40,000 per year and defendant earned $115,000 per year. The trial court also found that defendant's child support obligation would be $1,305.77 per month, assuming that plaintiff earned $41,200 annually and defendant earned $108,676. These different annual income amounts were based upon testimony by plaintiff that her starting salary was $40,000, which had increased to $41,200 and defendant's testimony that his salary of $115,000 would decrease by 5% in February 2002. The trial court also found as a fact that defendant had failed to show application of the Guidelines to be unjust or inappropriate. The trial court's findings of fact thus supported its conclusions of law. The trial court did not abuse its discretion in awarding child support of $1,356 from the filing of plaintiff's motion until January 2002, and prospective support of $1,306 from February 2002 onwards. This assignment of error is overruled.
Defendant further assigns error to the trial court's computation of the child support arrearage and to the trial court's determination of prospective child support. Defendant contends that the court's findings of plaintiff's income being $40,000 in 2001 and $41,200 in 2002 is not supported by the evidence. Defendant argues that using these income figures to calculate child support arrears and prospective support was improper. We disagree.
As noted above, the trial court must determine the credibility of conflicting evidence. Here, the trial court's findings regarding plaintiff's earnings were supported by her evidence. Although conflicting evidence was introduced, we cannot say that the trial court abused its discretion by placing greater emphasis on plaintiff's evidence. We find no abuse of discretion in the trial court's calculations of child support arrearage and prospective child support. These assignments of error are overruled.
Defendant's final argument on appeal is that the trial court erred by awarding attorney fees to plaintiff. Defendant argues that the trial court did not make sufficient findings to support its conclusion that plaintiff was unable to defray the expenses of her lawsuit. We disagree.
G.S. § 50-13.6 outlines when attorney fees can be awarded in domestic lawsuits. See G.S. § 50-13.6 (2001). The trial court was required to make three findings of fact to support the award of attorney fees in this child support action: (1) that plaintiff was an interested party acting in good faith; (2) plaintiff had insufficient means to defray the costs of the lawsuit; and (3) that defendant refused to provide adequate support at the time the proceeding was instituted. See Burr v. Burr, 153 N.C. App. 504, 570 S.E.2d 222 (2002). The trial court made all of these findings and, in addition, found that plaintiff was unable to meet her own needs or the reasonable needs of her children from her current income. These findings sufficiently support the trial court's award of attorney fees. This assignment of error is overruled.
For the reasons stated, we affirm.
Affirmed.
Judges HUNTER and GEER concur.
Report per Rule 30(e).