Rogers v. Rogers

251 S.E.2d 663 (1979)

39 N.C. App. 635

Ruth Mae ROGERS v. Curtis ROGERS.

No. 7817DC261.

Court of Appeals of North Carolina.

February 6, 1979.

*664 Upperman & Johnson by Angela R. Bryant, Graham, for plaintiff-appellee.

Bethea, Robinson, Moore & Sands by Alexander P. Sands III, Reidsville, for defendant-appellant.

CLARK, Judge.

Defendant first contends that the court erred in granting plaintiff's motion to amend the complaint to include a demand for attorney's fees. G.S. 1A-1, Rule 15(a) provides that leave to amend shall be "freely given when justice so requires." The trial judge has broad discretionary powers to permit amendments to any pleading. See, Dobias v. White, 240 N.C. 680, 83 S.E.2d 785 (1954), and the court's ruling is not reviewable on appeal in absence of a showing of abuse of discretion. Mangum v. Surles, 12 N.C.App. 547, 183 S.E.2d 839 (1971), rev'd on other grounds, 281 N.C. 91, 187 S.E.2d 697 (1972). The burden is upon the party objecting to the amendment to set forth the grounds for his objection and to establish that he will be prejudiced if the motion is allowed. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

There is no indication that the defendant was prejudiced by the court's order or that the judge abused his discretion in granting plaintiff's motion. Defendant's first assignment of error is overruled.

Defendant contends that the court erred in awarding counsel fees to plaintiff because there was no allegation that plaintiff was unable to "defray the expense of the suit." G.S. 50-13.6. The plaintiff, however, alleged that she was the dependent spouse and alleged that she had insufficient means to support the children during the pendency of the suit. These allegations are sufficient.

Defendant further contends that the court erred in awarding counsel fees since there was no finding of fact that the plaintiff was unable to defray the expense of the suit. In Nolan v. Nolan, 20 N.C.App. 550, 202 S.E.2d 344, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974), this court held that where the trial court failed to make a finding of fact as to the wife's ability to defray the expense of the suit as required by G.S. 50-13.6, the trial court abused its discretion in awarding attorney's fees to the wife. See also, Roberts v. Roberts, 38 N.C.App. 295, 248 S.E.2d 85 (1978); Lindsey v. Lindsey, *665 34 N.C.App. 201, 237 S.E.2d 561 (1977); In re Cox, 17 N.C.App. 687, 195 S.E.2d 132, cert. denied 283 N.C. 585, 196 S.E.2d 809 (1973). The court erred in failing to make such findings.

Defendant further contends that there were insufficient findings of fact relating to the nature and scope of the legal services rendered by plaintiff's counsel. The court requested and received a detailed affidavit from plaintiff's counsel setting forth the nature of the legal services and the scope of the services. The court, however, failed to make a finding as to the reasonableness of the fees as required by Lindsey v. Lindsey, supra; Wyatt v. Wyatt, 32 N.C.App. 162, 231 S.E.2d 42 (1977); Rickenbaker v. Rickenbaker, 21 N.C.App. 276, 204 S.E.2d 198 (1974), modified on other grounds 290 N.C. 373, 226 S.E.2d 347 (1976); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971). The court erred in failing to make findings of fact as to the reasonableness of the attorney's fees incurred.

The defendant also contends that the court erred in awarding custody of the minor children to plaintiff because the court failed to find sufficient facts upon which to base the award. See Austin v. Austin, supra. We find no merit in defendant's contention. The court found that the defendant had been convicted of criminal non-support on 22 October 1974, that defendant had willfully refused to provide support during the pendency of this action and that on 24 July 1977, defendant hit his son, Curtis, Jr., with a tire tool and cut the plaintiff under the arm with a knife during a family quarrel. Both the plaintiff and her son were treated at the hospital as a result of injuries inflicted by defendant. The court made ample findings of fact to support the order granting custody of the children to the plaintiff. See In re Custody of Stancil, 10 N.C.App. 545, 179 S.E.2d 844 (1971); Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953). Defendant's assignment of error is overruled.

The defendant also contends that the court erred in awarding the type and amount of child support because the court failed to account for defendant's living expenses. In Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963), the trial court awarded support by dividing defendant's wages by the number of his dependents. The North Carolina Supreme Court held that the court erred because the court failed to consider both the needs of the children and the living expenses of the defendant. Here, the court found that the plaintiff had a net income of $65.00 per week and expenses of $520.00 per month, that the house payments were in arrears, that the telephone had been disconnected, and the electricity had been turned off at the homeplace. The plaintiff paid $147.00 to regain electrical service and still owes $300.00 to the telephone company. The court found that defendant's net income was $149.18 every two weeks and ordered defendant to pay $70.00 every two weeks for support. The findings of the court indicate that the needs of all parties were taken into consideration by the trial court.

The defendant also argues that the court erred in awarding the 1969 Buick Electra and the cut wood which were located at the marital home for the support of the children, without making findings of fact as to the value of the property. The court found that the abandoned automobile and the wood were of "some value," clearly indicating that the value of the items was minimal. If the defendant establishes that monies received from the sale of the automobile and wood was substantial then the defendant should notify the court of the amount received by plaintiff from the sale of the items and the court shall reconsider the child support award.

Defendant's fourth contention is that the court erred in awarding the possession of the marital home owned by the parties as tenants by the entireties. Defendant contends that G.S. 50-13.4(e) does not give the court the authority to transfer possession of real property. In Arnold v. Arnold, 30 N.C.App. 683, 228 S.E.2d 48 (1976) and Boulware v. Boulware, 23 N.C. App. 102, 208 S.E.2d 239 (1974), this court held that "the trial judge may award exclusive *666 possession of the homeplace, even though owned by the entirety, as a part of support under G.S. 50-13.4." 30 N.C.App. at 685, 228 S.E.2d at 50. Defendant's assignment of error is overruled.

That portion of the order relating to the award of attorney's fees is vacated and remanded for the trial court to make findings of fact in regard to the ability of the plaintiff to defray the expenses of the suit and the reasonableness of the attorney's fees incurred.

Affirmed in part, Reversed and Remanded in part.

MITCHELL and WEBB, JJ., concur.