Koufman v. Koufman

• Decision Date: 03 October 1991
• Docket Number: No. 96A90,96A90
• Citation: 408 S.E.2d 729,330 N.C. 93
• Court: North Carolina Supreme Court
• Parties: Lois E. KOUFMAN v. James A. KOUFMAN.

Page 729

408 S.E.2d 729

330 N.C. 93

Lois E. KOUFMAN v. James A. KOUFMAN.

No. 96A90.

Supreme Court of North Carolina.

Oct. 3, 1991.

Appeal by defendant pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 97 N.C.App. 227, 388 S.E.2d 207 (1990), reversing an order entered by Keiger, J., on 1 September 1988 in District Court, Forsyth County. Heard in the Supreme Court 5 September 1990.

White and Crumpler by Fred G. Crumpler, Jr., G. Edgar Parker, Christopher L. Beal, Dudley A. Witt, and J. Matthew Dillon, Winston-Salem, for plaintiff-appellee.

Morrow, Alexander, Tash, Long & Black by John F. Morrow and Clifton R. Long, Jr., Winston-Salem, for defendant-appellant.

EXUM, Chief Justice.

From an order modifying defendant's child support obligation, plaintiff appealed to the Court of Appeals. The Court of Appeals reversed this order and remanded the case for reinstatement of the original child support order. ^* We now reverse the Court of Appeals' decision and reinstate the trial court's modification order.

Plaintiff wife and defendant husband were married on 16 August 1969. They had two children, Joseph Matthew Koufman, born 12 April 1972, and H. Clifford Koufman, born 11 June 1974. Plaintiff and defendant separated on 6 November 1985. At that time the family resided in Forsyth County and both children were attending Summit School, a private school in Forsyth County. On 6 February 1986 plaintiff filed a complaint in Forsyth District Court for divorce from bed and board, child custody, child support, and alimony.

On 24 October 1986 the parties signed a consent order providing as follows: (1) plaintiff was to be primary custodian of the children; (2) the children were to live with each parent fifty percent of the time; and (3) defendant was to pay plaintiff $3,333 a month in child support, for a total of $40,000 a year. The consent order included several findings of fact, notably the following:

(12) The minor children are healthy, normal children, active in school and extracurricular activities. That the children have been attending and it is contemplated that they shall continue to attend private school. That the parties have made past expenditures for the health, education and maintenance of said children in excess of $3,000.00 per month.

The consent order further provided that defendant pay up to $10,000 per year for the children's private school expenses, and that any private school expenses over that amount would be paid equally by the parties.

Defendant complied with the consent order and paid the monthly child support as ordered through September 1987. At about that time, the older son Joseph was enrolled in Woodberry Forest, a boarding school costing $11,435 a year. Beginning in October 1987, defendant reduced his child support payments to plaintiff by $288.17 a month. Defendant explained that the adjustment reflected plaintiff's share of increased education expenses, including Joseph's new boarding school tuition and the younger child's tuition which had risen to $5,980 a year.

Plaintiff on 21 October 1987 filed a motion in Forsyth District Court for defendant to appear and show cause why he should not be held in contempt for violating the terms of the 1986 consent order. Plaintiff contended that defendant had unilaterally enrolled Joseph in boarding school without plaintiff's consent to share the added expense. Defendant on 4 November 1987 filed a response and moved to reduce child support payments under the consent order on the grounds of a material change in circumstances.

During the recess of a hearing on both motions before Keiger, J., on 8 February 1988, the parties executed a "memorandum of judgment" providing inter alia that defendant's child support obligation be reduced to $1,000 a month per child; that defendant pay all private school expenses of the children; and that defendant be given credit against his child support obligation for any private school expenses exceeding $18,000 per year. The document, however, was not signed by the trial court and was not filed in court records. When plaintiff refused to sign a consent order making identical provisions, defendant moved that the trial court adopt the memorandum of judgment as a court order. The court denied that motion.

The trial court resumed the hearing on plaintiff's and defendant's respective motions on 24 August 1988 and held that defendant was not in contempt of court. In an order filed 6 September 1988 the trial court found as a fact that the parties stipulated it would be in Joseph's best interest to continue attending Woodberry Forest. The trial court denied plaintiff's motion to dismiss defendant's motion to modify the 1986 consent order and held that a material change of circumstances had occurred justifying a modification. The trial court reduced defendant's child support obligation to $1,700 per month, ordered defendant to pay all the children's education expenses, and ordered defendant to provide insurance and pay all the children's reasonable medical expenses.

N.C.G.S. § 50-13.7 provides that a child support order "may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances...." N.C.G.S. § 1A-1, Rule 52(a) provides that when a trial court sits as trier of fact, it must "find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." In the case sub judice the trial court followed this procedure. In support of its order, the trial court entered eighteen detailed findings of fact and four conclusions of law, demonstrating its thoughtful and meticulous consideration of the evidence.

Only two factual findings by the trial court are at issue in this appeal: the trial court's finding of plaintiff's reasonable past expenses for the two children, and the trial court's calculation of plaintiff's reasonable current expenses for one of the children. A majority of the Court of Appeals concluded that (1) the trial court's finding of fact concerning past expenses was not supported by sufficient evidence and (2) the trial court erroneously calculated plaintiff's reasonable current expenses for the older child Joseph. Greene, J., dissented from the majority decision to reverse the modification order. The dissent concluded that the order was sufficiently supported by evidence and the trial court had properly calculated plaintiff's current expenses for Joseph. We conclude that the issue of the sufficiency of evidence to support the finding of past expenses has not been properly presented on appeal and should not have been addressed by the Court of Appeals. We agree with Judge Greene's position that the trial court's other challenged finding properly calculated plaintiff's reasonable current expenses for Joseph.

The trial court's order contained the following finding of fact:

(2) In October of 1986, the plaintiff's net income was approximately $4,200 per year; that the defendant's gross income was approximately $135,000 per year; that the plaintiff's expenses in her home for the minor children were in excess of $3,000 per year [sic].

(The Court of Appeals assumed, and we agree, that the trial court intended the order to say "$3,000 per month " rather than "per year.")

The Court of Appeals concluded that the trial court erred in...