Mullen v. Mullen

339 S.E.2d 838 (1986)

Cynthia Austin MULLEN v. Brent Lewis MULLEN.

No. 8526DC801.

Court of Appeals of North Carolina.

March 4, 1986.

*840 Cynthia Austin Mullen, plaintiff-appellee, pro se.

Bailey, Patterson, Caddell & Bailey, P.A. by James A. Warren, Charlotte, for defendant-appellant.

WHICHARD, Judge.

Defendant-husband contends the evidence and findings of fact do not support an order increasing child support. We agree.

N.C.Gen.Stat. Sec. 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...." This Court has stated:

The modification of the order must be supported by findings of fact, based upon competent evidence, that there has been a substantial change of circumstances affecting the welfare of the child.... It is not necessary for the trial court to make detailed findings of fact upon all the evidence offered at trial. The order must contain the material findings of fact which resolved the issues raised. In each case the findings of fact must be sufficient to allow an appellate court to determine upon what facts the trial court predicated its judgment. [Citations omitted.]

Ebron v. Ebron, 40 N.C.App. 270, 271, 252 S.E.2d 235, 236 (1979).

Specifically, the trial court must determine the "present reasonable needs of the subject minor child, before ordering a modification in child support." Norton v. Norton, 76 N.C.App. 213, 216, 332 S.E.2d 724, 727 (1985). "To properly determine the child's present reasonable needs, the trial court must hear evidence and make findings of specific fact on the actual past expenditures for the minor child, the present reasonable expenses of the minor child, and the parties' relative abilities to pay." Id. "[E]vidence of, and findings of fact on, the parties' income, estates, and present reasonable expenses are necessary to determine their relative abilities to pay." Id. at 218, 332 S.E.2d at 728.

Applying the above requirements to the order and record here, we find them deficient in the following respects:

The court's only finding on actual past expenditures was that plaintiff-wife "had child care expenses of approximately $25.00 per month" when the 1981 order was entered. The court made no specific findings as to food, shelter, clothing or other major past expenditures. Further, plaintiff-wife testified that her child care expenses in 1981 were $25 per week, not $25 per month. Thus, the sole finding on *841 actual past expenditures was not supported by the evidence.

The court found specific present expenses of the child for daycare, babysitting, health insurance, and entertainment. It noted a general increase in his clothing expenses and uninsured medical expenses from 1981. Again, however, it failed to make any specific findings as to food, shelter, or other major present expenditures besides daycare. The court also made no finding that the present expenses of the child were reasonable.

Regarding the parties' relative ability to pay, the court did state each party's gross income for 1981 and 1984. However, it omitted any specific findings as to the parties' present reasonable expenses or estates, and it merely determined generally that plaintiff-wife's reasonable needs for the child were approximately $700 monthly and for herself were approximately $600 monthly, and that defendant-husband's reasonable needs for himself were approximately $1,300 monthly.

Without definitive findings regarding the past and present needs of the [child], and the abilities of the plaintiff and the defendant to meet these needs, it is impossible to understand how the court concluded that the monthly financial needs of the [child would be approximately $700], or to comprehend by what formula the court divided the total amount between the parties.

Daniels v. Hatcher, 46 N.C.App. 481, 484-85, 265 S.E.2d 429, disc. rev. denied, 301 N.C. 87 (1980).

Further, as in Norton, supra, we "conclude that the trial court had insufficient evidence of [the child's] actual past expenditures to make the requisite specific finding of fact on actual past expenditures." 76 N.C.App. at 216, 332 S.E.2d at 727. Here, as in Norton, "no evidence of actual past expenditures for the interim years 1982 and 1983 [and 1984] appears in the record." Id. at 217, 332 S.E.2d at 727. Plaintiff-wife thus has failed to carry her burden of proving a substantial change in circumstances. Id.

Accordingly, following Norton, we reverse the 19 March 1985 modification and reinstate the $180 monthly child support payment due under the 16 September 1981 consent judgment retroactive to 15 March 1985, the modification date stated in the 19 March 1985 order. Id. This case, like Norton, is distinguishable from Daniels, where "the record was `replete with evidence' comparing the [child's] needs and expenses at frequent intervals from the time of the consent order to the present." Id. We thus cannot simply vacate and remand for the requisite specific findings from the evidence, as was done in Daniels.

Defendant-husband also contends the court erred in ordering him to pay part of plaintiff-wife's attorney's fees. Because that part of the order increasing child support payments is reversed, the award of attorney's fees must also be reversed. Walker v. Tucker, 69 N.C.App. 607, 613-14, 317 S.E.2d 923, 927-28 (1984).

We note that plaintiff-wife may again move for modification of the order at any time, and the court may allow the motion if it makes the required findings of fact based upon adequate evidence.

Reversed.

JOHNSON and PHILLIPS, JJ., concur.