Boyd v. Boyd, 8526DC1033

• Decision Date: 03 June 1986
• Docket Number: No. 8526DC1033,8526DC1033
• Citation: 343 S.E.2d 581,81 N.C.App. 71
• Court: North Carolina Court of Appeals
• Parties: Gloria C. BOYD v. James E. BOYD.

Page 581

343 S.E.2d 581

81 N.C.App. 71

Gloria C. BOYD v. James E. BOYD.

No. 8526DC1033.

Court of Appeals of North Carolina.

June 3, 1986.

Casstevens, Hanner & Gunter by Nelson M. Casstevens, Jr., Charlotte, for plaintiff-appellee.

James, McElroy & Diehl by William K. Diehl, Jr., Charlotte, for defendant-appellant.

MARTIN, Judge.

I

By his first argument defendant brings forward four assignments of error grounded upon eleven exceptions to the findings of fact and conclusions of law contained in the court's order. The basis of his argument is that since the parties had agreed in their separation agreement as to the amount which defendant would pay for support of the children, the court was not warranted in increasing that amount in the absence of proof by plaintiff and a finding by the court that circumstances relating to the reasonable needs of the children had substantially changed between the date of the separation agreement and the date of the hearing upon the motion for increase. He further contends that because plaintiff offered no evidence of a change in circumstances, there was no basis for any increase in the amount of child support provided by the terms of the separation agreement.

In those cases where the amount of support for minor children has been fixed by court order, a party seeking to modify the award of support must show a change in circumstances affecting the welfare of the child between the time of the prior order and the time of the hearing of the motion to modify it. G.S. § 50-13.7; Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). However, in those instances where child support is originally fixed by a separation agreement between the parties, which is not thereafter approved by the court and incorporated into an order or judgment, there is apparently some confusion as to the proof required of a party seeking to modify the child support provisions of the agreement. Some cases have held that the court may not modify the amount of child support agreed upon in the separation agreement unless there is evidence of a change in conditions. See Hershey v. Hershey, 57 N.C.App. 692, 292 S.E.2d 141 (1982); Rabon v. Ledbetter, 9 N.C.App. 376, 176 S.E.2d 372 (1970). See also dicta in Holthusen v. Holthusen, 79 N.C.App. 618, 339 S.E.2d 823 (1986). However, in Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449, disc. rev. denied, 292 N.C. 730, 235 S.E.2d 784 (1977), the Court, while finding ample evidence of a change in circumstances, declared that the moving party was not required to show the needs of the child at the time the separation agreement was signed, but only the amount reasonably required for the support of the child at the time of the hearing. Implicit in this statement is the notion that no proof of a change in circumstances relating to the needs of the child is required. And, in Walker v. Walker, 63 N.C.App. 644, 306 S.E.2d 485 (1983), the Court held that the party moving for modification "was not required to show a substantial change in circumstances from the time of the separation agreement as justification for an increase in child support payments." Id. at 647, 306 S.E.2d at 486. See Rice v. Rice, 81 N.C.App. 247, 344 S.E.2d 41 (1986).

It is well established that the provisions of a separation agreement relating to custody and support of minor children are not binding on the court, which has the inherent and statutory authority to protect the interests of children. Crutchley v. Crutchley, 306 N.C. 518, 293 S.E.2d 793 (1982); Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963). However, in Fuchs, the Supreme Court recognized a presumption, in the absence of evidence to the contrary, that the amount of child support agreed upon in the separation agreement is reasonable. Consequently, the Fuchs court held that the trial court is "not warranted in ordering an increase in the absence of any evidence of a change in conditions or of the need for such increase...." Id. at 639, 133 S.E.2d at 491 (emphasis added). Scarcely one month later, the Supreme Court decided Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964). In Williams the Court clearly distinguished the showing which is required upon a motion for increase in court ordered child support from that required when the amount of child support has been fixed by separation agreement.

When a wife petitions the judge to increase the amount which the Court itself has previously fixed for the support of minor children, she assumes the burden of showing that circumstances have changed between the time of the order and the time of the hearing upon the petition for increase .... However, ... in this case, the defendant's support payments for the children had been made pursuant to the terms of a deed of separation which was in no way binding on the court insofar as it applied to the children. Therefore, plaintiff's only burden was to show the amount reasonably required for the support of the children at the time of the hearing. The amount which the parties fixed ... was merely evidence for the judge to consider, along with all the other evidence in the case, in determining a reasonable amount for support of the children.

Id. at 58-59, 134 S.E.2d at 234-35 (emphasis added). Referring to the presumption created by Fuchs, the Court explained that an increase in the amount of child support mutually agreed upon is not warranted "in the absence of any evidence of the need for such increase." Id. at 59, 134 S.E.2d at 235.

When a motion is made to modify the child support provisions of a separation agreement which has not previously been incorporated into an order or judgment of the court, the court is called upon, for the first time, to exercise its authority to see that the reasonable needs of the child are provided for commensurate with the abilities of those responsible for the child's support. We hold, under the authority of Williams, that the moving party's only burden is to show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing. Should the evidence establish, giving due regard to the factors contained in G.S. 50-13.4(b) and (c), that such amount substantially exceeds the amount agreed upon in the separation agreement, such evidence would necessarily rebut the presumption of reasonableness created in Fuchs and establish the need for an increase. Absent such a showing, the agreement of the parties will be deemed to be reasonable. While evidence of a change in circumstances, involving a comparison of actual expenditures and other circumstances between the time of the separation agreement and that date of the hearing, may be relevant to the issue of reasonableness, such evidence is not an absolute requirement to justify an increase.

II

Having concluded that plaintiff is not required to show a change in circumstances, but only the present reasonable needs of the children, in order to justify modification of the child support provisions of the separation agreement, we turn now to a consideration of defendant's assignments of error relating to the amount of support which he was ordered to pay.

Initially, defendant contends that the trial court entered a judgment which required him to specifically perform those provisions of the separation agreement relating to payment of medical and dental expenses and maintenance of medical insurance for each child. Citing Christie v. Christie, 59 N.C.App. 230, 296 S.E.2d 26 (1982), defendant contends that the trial court erred in awarding specific performance of those provisions of the agreement without first finding that plaintiff had no adequate remedy at law. We find his reliance on Christie to be misplaced and his argument without merit. Plaintiff did not seek specific performance of any provisions of the separation agreement nor did the trial court decree specific performance. A fair reading of the order indicates that the court found the provisions of the agreement relating to medical and dental care to be reasonable and incorporated those provisions into its order for child support. The provisions of the order relating to payment for medical and dental care and insurance coverage for the children are directly related to the health and maintenance of the children and are well within the discretion of the trial court.

Defendant next contends that the court's findings of fact are inadequate to support its conclusions as to the amount reasonably required of him for the support of the children or as to his ability to pay that amount. In these respects, his contentions have merit.

Support for minor children is an obligation shared by both parents according to their relative abilities to provide support and the reasonable needs and estate of the child. G.S. 50-13.4(b); Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985). The amount of each parent's contribution to the support of the child is based upon the trial court's evaluation of each parent's circumstances, including a determination of certain factors mandated by G.S. 50-13.4(c):

(c) Payments ordered for the support of a minor child shall be in such amounts as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.

Plott v. Plott, supra. In order to comply with the statute, the trial court is required to make findings of fact with respect to the factors listed in the statute which findings must be sufficiently specific to support its conclusions of law with respect to the amount reasonably necessary for support of the child and the relative abilities of the parties to provide that support. Id. Such findings are required in order that the appellate court may determine whether the trial court gave due consideration to these factors and whether the order...