Walker v. Walker, 8214DC884
| Decision Date | 06 September 1983 |
| Docket Number | No. 8214DC884,8214DC884 |
| Citation | 306 S.E.2d 485,63 N.C.App. 644 |
| Court | North Carolina Court of Appeals |
| Parties | Mary F. WALKER, Plaintiff, v. Charles F. WALKER, Defendant, and United States of America, Garnishee. |
Law firm of Eric C. Michaux by Eric C. Michaux and Robert Brown, Jr., Durham, for plaintiff-appellee.
Powe, Porter & Alphin, by N.A. Ciompi and William E. Freeman, Durham, for defendant-appellant.
The defendant first assigns as error the denial of defendant's 21 May 1982 motion to dismiss. He alleges that the action filed by plaintiff on 16 February 1978, and its subsequent dismissal with prejudice on 19 July 1978, acted as res judicata in the later action filed by plaintiff on 4 March 1982. A prior action concerning child support is res judicata only as long as the circumstances existing at the time of the prior action have remained the same. See Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). "[N]either agreements nor adjudications for the custody or support of a minor child are ever final." McLeod v. McLeod, 266 N.C. 144, 153, 146 S.E.2d 65, 71 (1966). We reject defendant's argument that the doctrine of res judicata applies. We find no error in the denial of defendant's motion to dismiss.
Defendant next contends that the trial court erred in concluding, as a matter of law, "that the plaintiff is not required to show a substantial change in circumstances in order to modify the separation [sic] but rather, the plaintiff must show the amount reasonably required for the support of the child at the time of this hearing." The situation here is similar to that dealt with in Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964). In both cases, prior to the entry of the order appealed from, the defendant's child support payments were made under the terms of a separation agreement. Williams held that in such a case Id. at 59, 134 S.E.2d at 235. Plaintiff need not show and the trial court need not make findings concerning the needs of the child at the time the separation agreement was signed. Perry v. Perry, 33 N.C.App. 139, 234 S.E.2d 449, disc. review denied, 292 N.C. 730, 235 S.E.2d 784 (1977). We, therefore, hold that plaintiff 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.
Defendant's final assignments of error in effect challenge the basis on which the court ordered an increase in defendant's child support payments. The trial court found as fact that:
11. That at the time of the Separation Agreement, the parties owned a house located at 5500 Old Well Street, Durham, North Carolina. That simultaneously with the execution of the Separation Agreement, Charles F. Walker conveyed his interest in that home to Mary F. Walker. That thereafter, Mary F. Walker was forced to sell the home and now resides in an apartment.
....
16. The plaintiff has the following reasonable monthly expenses necessary for the support of one minor child:
Rent - $150.00
Electricity - 32.50
Telephone - 15.00
Cable T.V. - 8.33
Home Repairs - 2.50
Newspapers & Magazines - 1.25
Drycleaning & Laundry - 10.00
Education - 5.00
Church - 2.00
Transportation - 146.98
Groceries (Home) - 125.00
Food (Away) - 5.00
School Lunches - 18.00
Clothing - 40.00
Personal Items - 5.00
Recreation - 20.00
Medical & Dental - 20.00
Gifts (Christmas & Birthdays) - 43.49
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Total $645.00
17. That the defendant has submitted to the Court an affidavit showing his monthly expenses, which he alleges total $2,252.12. These expenses include a mortgage payment of $622.19 for a four bedroom house in which he is the sole occupant; a payment of $100.00 per month for an insert for his fireplace; an average monthly electricity bill of $108.00; and NCNB Bank Americard Bill of $100.00 monthly. The Court finds that the defendant Walker has voluntarily undertaken unreasonable expenses to the detriment of his ability to support his minor child.
18. That the plaintiff has a net monthly income of $836.00 and reasonable monthly expenses of $645.00. Plaintiff is employed by the Durham County Schools in the capacity of teach [sic ] of Physical Education.
19. That based on parties income and reasonable expenses, and the needs of the child for health, education and maintenance in the accustomed standard of living of the child and the parties, the homemaker contribution of the plaintiff, this Court determines that the defendant should pay 60% of the reasonable needs of the child or $387.00 and the plaintiff should bear the remaining 40%.
20. That the plaintiff provides the following homemaking services for the minor child:
Activity Hours
----------------- -----
Cooking 13.5
Cleaning 10.0
Laundry 5.9
Shopping 4.0
Tutoring 2.0
Nurse 3.5
Chauffeur 3.5
Dietician 1.2
Dishwasher 5
Child Care 128
Family Counseling 3.5
Seamstress 1.0
21. The defendant provides no homemaking contribution for the minor child.
....
23. The Court takes judicial notice of the substantial increase in the costs of raising a child caused by inflation.
....
25. The court finds as a fact that the plaintiff is in need of financial assistance from defendant father for the partial support of the child. And that he is capable of providing such support.
The court then concluded as a matter of law that:
4. The Court has taken the terms of the Separation Agreement into consideration but finds as a matter of law that this agreement does not operate to remove the child, Tiffany Walker, from the supervision of the Court in regards to the matter of support and that the court is not bound by the terms of the agreement. The Court finds that as a matter of law there has been a showing of need by the plaintiff which requires the change of the provision of the separation agreement relating to support. The Court determines that the welfare of the child and the estates of the parties require that the defendant pay 60% of the child's reasonable needs or $387.00. This amount is exclusive of any amount the defendant is required to pay as alimony. The Court finds as a matter of law that the plaintiff is not required to show a substantial change in circumstances in order to modify the separation [sic] but rather, the plaintiff must show the amount reasonably required for the support of the child at the time of this hearing. Nevertheless, this Court finds that as a matter of law there has been a material change of circumstances in that the plaintiff no longer resides in the marital home which she was forced to sell; that the needs of the child for support of the minor from defendant clearly exceed the $175.00 per month payment required in the separation agreement; and that the income of the defendant has increased from $25,000.00 per year to $32,000.00 per year.
These findings of fact and conclusions of law must be supported by competent evidence. Wyatt v. Wyatt, 32 N.C.App. 162, 231 S.E.2d 42 (1977). The trial court's order increasing the amount of child support which defendant must pay can be distributed only upon a showing of a gross abuse of discretion. Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700 (1963); ...
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