Holt v. Holt

• Decision Date: 07 April 1976
• Docket Number: No. 7526DC883,7526DC883
• Citation: 223 S.E.2d 542,29 N.C.App. 124
• Parties: Claudette W. HOLT v. Richard Allen HOLT.
• Court: North Carolina Court of Appeals

Page 542

223 S.E.2d 542

29 N.C.App. 124

Claudette W. HOLT v. Richard Allen HOLT.

No. 7526DC883.

Court of Appeals of North Carolina.

April 7, 1976.

Robertson & Brumley by Richard H. Robertson, Charlotte, for plaintiff-appellee.

Turner, Rollins & Rollins by Clyde T. Rollins, Charlotte, for defendant-appellant.

HEDRICK, Judge.

The defendant contends the court erred in ordering him to pay child support at the rate of $400.00 per month and an attorney's fee in the amount of $300.00. At the hearing on plaintiff's motion for alimony Pendente lite, custody and support of minor children and counsel fees, evidence tended to show the following.

The parties were married on 27 January 1967 and two children, Sloane, age six, and Che, age four, were born of the marriage. Beginning in 1973 and continuing into 1974, the defendant would spend very little time with his family. He stopped coming home for dinner and would come home late at night and leave when he got up in the morning. 'When he did stay around the house, he smoked marijuana and listened to music. . . .' Finally on 27 April 1974, the defendant told the plaintiff that she 'made him sick' and he left the family home taking his personal belongings with him. Since then the parties 'have spent five to ten nights together'.

The plaintiff testified that present expenses for herself and her children were $898.20 per month. Plaintiff's net earnings from her employment as a hair stylist are from $40 to $60 per week.

The defendant was trained as a truck driver. He worked for Boren Clay Products Co. from 1968 to 1972 as a driver earning $9,000 in 1969, $16,000 in 1970, $18,000 in 1971, and $22,000 in 1972. His father who worked for Boren had obtained this job for him, and after he died the defendant was fired. Since then he has worked for U--Haul Corporation, Interstate Contract Carrier Corporation, and Walter Griffin, Jr., as a trucker, and for East Coast Electronic Scales Company as a salesman. None of these jobs had lasted more than a few months. At the time of the hearing the defendant was employed as a truck driver for D. A. Hampton Trucking Co.; but due to the weather and the economy, he had grossed only $1200 from December, 1974, when he began working for Hampton, until the time of the hearing. Since June or July, 1973, the defendant had earned no more than $2000.

The defendant had been sending $450 per month support since separating until two months prior to the hearing when he reduced the payments to $250. The money for the support was being given to him by his mother.

While it is the legal obligation of the father to provide for the support of his minor children, G.S. 50--13.4, and while the welfare of the child is a primary consideration in matters of custody and maintenance, 'yet common sense and common justice dictate that the ultimate object in such matters is to secure support commensurate with the needs of the child and the Ability of the father to meet the needs.' Crosby v. Crosby,272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967) (emphasis added); Gibson v. Gibson, 24 N.C.App. 520, 211 S.E.2d 522 (1975). In determining the ability of the father to support the child, the court ordinarily should examine the father's Present earnings, Powell v. Powell, 25 N.C.App. 695, 214 S.E.2d 808 (1975), rather than 'select the earnings for a single year in the past and use that as the basis for an award . . .' Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960).

'If the husband is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which defendant is earning when the award is made. To base an award on capacity to earn rather than actual earnings, there should be a finding, based on evidence that the husband is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife and children.' Robinson v. Robinson, 10 N.C.App....