Medlin v. Medlin , 64 N.C. App. 600 ( 1983 )

307 S.E.2d 591 (1983)

Raymond R. MEDLIN
v.
Seena L. MEDLIN.

No. 8220DC1108.

Court of Appeals of North Carolina.

October 18, 1983.

Griffin, Caldwell, Helder & Steelman, P.A. by Sanford L. Steelman, Jr., Monroe, for plaintiff-appellant.

Joe P. McCollum, Jr., Monroe, for defendant-appellee.

WHICHARD, Judge.

Plaintiff contends the findings are insufficient to show willful failure to comply, and that the court thus erred in holding him in contempt. He argues that they do not show that he "is able to comply ... or ... to take reasonable measures that would enable him to comply," G.S. 5A-21(a)(3), and that they thus do not support the order.

As noted, the court found that plaintiff was the sole proprietor of a business; had grossed approximately $3,000, or $600 per month, during the first five months of 1982; had listed the business for sale for $35,000; and owned three motor vehicles. These findings are supported by competent evidence, and thus are reviewable only for sufficiency to warrant the judgment. Clark v. Clark, 294 N.C. 554, 571, 243 S.E.2d 129, 139 (1978); Jones v. Jones, 52 N.C.App. 104, 111, 278 S.E.2d 260, 265 (1981).

That plaintiff had the ability to comply, or to deal with his assets so as to enable him to comply, and had willfully failed or refused to do so, is implicit in the above findings. His arrearages totalled only $1,000, and the findings established that he "had resources upon which to call" with a value in excess of that amount. See Reece v. Reece, 58 N.C.App. 404, 407, 293 S.E.2d 662, 664 (1982). While an explicit finding of present ability to comply or to take reasonable measures to enable compliance, and of willful failure or refusal to do so, would have been preferable, the conclusion from the findings made that plaintiff "has sufficient assets to pay alimony as ordered" adequately serves the purpose. It thus suffices to warrant the order of contempt. See Daugherty v. Daugherty, 62 N.C.App. 318, 320, 302 S.E.2d 664, 665 (1983) (absence of finding as to ability immaterial where evidence plainly shows capacity to comply).

Plaintiff contends the court erred in denying his reduction motion. An order for alimony may be modified or vacated at any time upon a showing of changed circumstances. G.S. 50-16.9(a). The change must be substantial, however, and the moving party has the burden of proving that the award is either inadequate or unduly burdensome. Britt v. Britt, 49 N.C.App. 463, 470, 271 S.E.2d 921, 926 (1980); see also Gill v. Gill, 29 N.C.App. 20, 21, 222 S.E.2d 754, 755 (1976).

A conclusion of a substantial change in circumstances based solely on a change in income is inadequate and erroneous. Britt, supra. The extant overall circumstances of the parties must be compared with those at the time of the award to determine whether a substantial change has occurred. Britt, supra, 49 N.C.App. at 474, 271 S.E.2d at 928.

The fact that the husband's salary or income has been reduced substantially does not automatically entitle him to a reduction in alimony or maintenance. If the husband is able to make the payments as originally ordered notwithstanding the reduction in his income, and the other facts of the case make it proper to continue the payments, the court may refuse to modify the decree.

Annot., 18 A.L.R. 2d 10, 43 (1951), quoted with approval in Britt, supra, 49 N.C.App. at 472, 271 S.E.2d at 927.

The original order and the reduction motion showed plaintiff's income at the time of the original award as $150 per week. Plaintiff relies on the contrasting evidence here that his income in 1982 was only a small sum drawn from the business to reimburse personal expenses and pay a personal account.

Under the standard set forth in Britt, a finding of changed circumstances based on this evidence alone would have been error. Plaintiff did not carry his burden of proving that his present overall circumstances, compared with his circumstances at the time of the award, entitled him to a reduction in payments. The court thus could refuse to modify the order. Britt, supra.

Plaintiff finally contends the findings and conclusions are not supported by the evidence, and that the court erred in failing to make certain other findings and resultant conclusions. The material findings are supported by competent evidence. The court is not required to find all facts supported by the evidence, but only sufficient material facts to support the judgment. Lea Co. v. Board of Transportation, 57 N.C.App. 392, 405, 291 S.E.2d 844, 852, disc. rev. granted, 306 N.C. 557, 294 S.E.2d 371 (1982); In re Custody of Stancil, 10 N.C.App. 545, 549, 179 S.E.2d 844, 847 (1971). The facts which plaintiff contends the court should have found were not material to support its judgment, and the court did not err in failing to find them.

Affirmed.

VAUGHN, C.J., and PHILLIPS, J., concur.