Koufman v. Koufman

• Decision Date: 06 February 1990
• Docket Number: No. 8921DC105,8921DC105
• Citation: 388 S.E.2d 207,97 N.C.App. 227
• Court: North Carolina Court of Appeals
• Parties: Lois E. KOUFMAN v. James A. KOUFMAN.

Page 207

388 S.E.2d 207

97 N.C.App. 227

Lois E. KOUFMAN v. James A. KOUFMAN.

No. 8921DC105.

Court of Appeals of North Carolina.

Feb. 6, 1990.

White and Crumpler by G. Edgar Parker and Christopher L. Beal, Winston-Salem, for plaintiff-appellant.

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

JOHNSON, Judge.

Plaintiff instituted this action on 6 February 1986 by the filing of a complaint in which she sought custody of her two minor children, child support, alimony, equitable distribution, divorce from bed and board, and attorney's fees. Defendant filed responsive pleadings, and on 24 October 1986, a consent order was signed and entered in district court. The order provided, inter alia, the following: (1) that the parties share custody of the minor children equally with plaintiff being considered primary custodian; and (2) that defendant pay $3,333.33 per month child support, for a total of $40,000 per year.

On 22 October 1987, plaintiff filed a motion for defendant to appear and show cause why he should not be held in contempt for violating the terms of the 1986 consent order. At the time the motion was filed, defendant was in arrears $288.17 on the October 1987 payment. A show cause order was signed; defendant responded and filed a countermotion to reduce child support payments based on a material change in circumstances.

After a hearing on both motions before the Honorable R. Kason Keiger on 8 February 1988, the parties executed a memorandum of judgment which provided, inter alia, that defendant's child support be reduced to $1,000 per month per child; that defendant pay all private school expenses of the children; and that defendant be given credit on child support payments for any private school expenses which exceed $18,000 per year. The document was not signed by Judge Keiger nor filed in the court file.

Upon plaintiff's refusal to sign the consent order drafted pursuant to the memorandum of judgment, defendant moved that the court conduct a hearing and issue an order making the memorandum of judgment an order of the court. Plaintiff responded that the memorandum was unenforceable, and that she had signed it under duress and coercion. She also moved that Judge Keiger recuse and disqualify himself in this matter based on his actions at the 8 February 1988 hearing. Judge Keiger denied this motion in an order entered 17 May 1988.

After a full hearing on 24 August 1988, Judge Keiger held that defendant was not in contempt of court and was in full compliance with all orders of the court. The court also reduced defendant's child support to 1,700 per month, ordered defendant to pay the private school expenses of both children, and ordered defendant to maintain medical and dental insurance on the children and to pay all reasonable medical expenses not covered by the insurance.

Plaintiff appealed to this Court in apt time.

Before turning to the merits of plaintiff's appeal we address defendant's motion that plaintiff's appeal should be dismissed for her failure to state plainly, concisely and without argument the legal basis upon which error is assigned pursuant to Rule 10(c)(1) of the N.C.Rules of Appellate Procedure. (Rule 10(c)(1) is a new rule applicable only to appeals of judgments of the trial division entered on or after 1 July 1989. It is not applicable to this case. We assume appellee intended to refer Rule 10(c) which is effective for judgments entered prior to 1 July 1989.) We find that plaintiff has sufficiently complied with this rule and defendant's argument is without merit.

Defendant also urges that plaintiff's appeal be dismissed for failure to comply with Rule 28(b)(3) and (4) of the N.C.Rule of Appellate Procedure which requires a concise statement of procedural history and a complete, non-argumentative summary of the facts. Plaintiff failed to comply with this rule by combining the statement of procedural history with the factual summary. Plaintiff also almost entirely failed to make reference to pages in the record on appeal as required by Rule 28(b)(4). (In response to defendant's motion, plaintiff has supplied the Court with a statement of facts to which page references have been added.)

Although plaintiff has not entirely complied with Rule 28, in the interest of preventing manifest injustice, we deem it appropriate to dispose of this appeal on its merits, pursuant to Rule 2 of the N.C.Rules of Appellate Procedure. State Employees' Credit Union, Inc. v. Gentry, 75 N.C.App. 260, 330 S.E.2d 645 (1985). Accordingly, defendant's motion to dismiss is denied.

By her first two Assignments of Error, plaintiff contends that the trial court erred in holding that defendant was not in contempt of court and in making findings of fact and conclusions of law supporting that holding. We find no error.

Our review of contempt proceedings is confined to whether there is competent evidence to support the findings of fact and whether those findings support the judgment. McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985); Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971). The 24 October 1986 order provided that any amount over $10,000 per year paid by defendant for private school expenses was to be shared equally by the parties. It also stated that the parties contemplated that their children would continue to attend private schools. Defendant testified that plaintiff did not object to enrolling their son Joseph in Woodberry Forest private boarding school since his former private school did not go past ninth grade. Defendant testified that plaintiff personally mailed a deposit form to Woodberry Forest. Based on the amounts spent by defendant on Woodberry Forest, he deducted $288.17 from monthly child support pursuant to the parties' agreement.

Plaintiff contends that the decision to enroll Joseph in Woodberry Forest was unilateral and that she was against it. This, she states, was in violation of the 24 October 1986 order which required the parties to participate equally in making major decisions concerning the children.

Essentially, plaintiff is pointing out the conflict between her testimony and that of defendant. It was the province of the trial court to resolve this conflict. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). Our review of the record shows that there was competent evidence to support the court's determination. Therefore, its findings that defendant's child support reduction prior to 8 February 1988 were in accord with the 24 October 1986 order and not in willful disregard of any court order will not be disturbed on appeal.

Defendant testified (and the court found as fact) that after 8 February 1988 he reduced his child support payments to $2,000 per month in reliance on the memorandum of judgment executed by the parties on that date. We need not determine the binding effect of the memorandum of 8 February in order to conclude that defendant was not in willful contempt of court in relying on its contents. We conclude that the court's findings of fact are supported by competent evidence, and these findings support the court's conclusion of law and order that defendant was not in contempt of court.

Next, plaintiff argues that the trial court erred in denying her motion to dismiss made at the conclusion of the evidence with respect to defendant's countermotion to reduce his child support payments. She also contends that certain findings of fact supporting the reduction in child support were not supported by the evidence.

Plaintiff's motion in this nonjury trial should be treated as one for involuntary dismissal pursuant to Rule 41(b) of the N.C.Rules of Civil Procedure. Holthusen v. Holthusen, 79 N.C.App. 618, 339 S.E.2d 823 (1986). Pursuant to this rule, the judge may at the close of the defendant's evidence give judgment against him "not only because his proof has failed in some essential aspect to make out a case but also on the basis of facts as he [the judge] may then determine them to be from the evidence then before him." Lumbee River Electric Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 218 (1983).

Defendant has the burden of proving a substantial change in circumstances affecting the welfare of the child to justify modifying a child support order. Gilmore v. Gilmore, 42 N.C.App. 560, 257 S.E.2d 116 (1979). To order a modification, the court must determine the present reasonable needs of the children. Evidence of actual past expenditures is essential in determining the children's present reasonable needs. Norton v. Norton, 76 N.C.App. 213, 332 S.E.2d 724 (1985).

Under G.S. 50-13.4(c) ... an order for child support must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to "meet the reasonable needs of the child" and (2) the relative ability of the parties to provide that amount. These conclusions must themselves be based upon factual findings specific enough to indicate to the appellate court that the judge below took "due regard" of the particular "estates, earnings, conditions, [and] accustomed standard of living" of both the child and the parents. It is a question of fairness and justice to all concerned.... In the absence of such findings, this Court has no means of determining whether the order is adequately supported by competent evidence....

....

... Effective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order's rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence; each link in the chain of reasoning must appear in the order itself. Where there is a gap, it cannot be determined on appeal whether the trial court correctly...