Williams v. Williams

197 S.E.2d 629 (1973)

18 N.C. App. 635

Paul J. WILLIAMS v. Peggy W. WILLIAMS.

No. 7326DC25.

Court of Appeals of North Carolina.

July 11, 1973.

*630 Mraz, Aycock, Casstevens & Davis, by Gary A. Davis, Charlotte, for plaintiff.

Robert F. Rush, Charlotte, for defendant.

BROCK, Judge.

Plaintiff excepts to the court's order allowing an increase in the amount of child support which plaintiff was paying to defendant under the separation agreement. Plaintiff contends that it was necessary for the court to make a finding of fact that plaintiff was financially able to pay such an increase, and that no such finding of fact was made.

No evidence was offered at the hearing with respect to plaintiff's health, condition, employment, earnings, or earning capacity. Defendant did allege in her motion that plaintiff was a practicing attorney in Charlotte, N. C., that he earned large sums of money, that he had income of several thousand dollars from an estate, and that he was able to support his children in accordance with the custom and standard formerly enjoyed by them. However, no evidence was offered at the hearing to support these allegations. In fact, the court specifically found that no evidence was presented in open court "as to the circumstances of the plaintiff."

It is generally recognized that decrees entered by our courts in child custody and support matters, or written agreements with respect to such matters, are impermanent in character and are subject to alteration by the court upon a change of circumstances affecting the welfare of the child. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77; Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487. The welfare of the child is paramount 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 need." (Emphasis added). Crosby v. Crosby, supra; accord, Fuchs v. Fuchs, supra.

At the hearing, no evidence was offered as to plaintiff's ability to pay increased child support. A determination of such ability to pay was an essential prerequisite of an order for increased child support payments. Appellant is entitled to another hearing in which the court will consider the ability of the plaintiff to pay increased child supporti. e., plaintiff's earnings or earning capacity, his financial circumstances, and his living expensesas well as the needs of the minor children. The defendant and the court are not without a method to compel the production of plaintiff's records, and to compel plaintiff's attendance and testimony. G.S. § 1A-1, Rule 45(f).

The order appealed from is vacated and the case remanded for a new hearing on defendant's motion.

Vacated and remanded.

HEDRICK and VAUGHN, JJ., concur.