Hightower v. Hightower

354 S.E.2d 743 (1987)

Luedell McK. HIGHTOWER
v.
Obey HIGHTOWER.

No. 8612DC932.

Court of Appeals of North Carolina.

April 21, 1987.

No brief for plaintiff-appellees.

Harris, Sweeny and Mitchell by Ronnie M. Mitchell, Fayetteville, for defendant-appellant.

WELLS, Judge.

Defendant first contends that the court erred in failing to conclude that plaintiff's increase in income, coupled with defendant's own plans to remarry, justified a decrease in the amount of alimony he is required to pay. We disagree.

Upon a showing of changed circumstances, an order for alimony may be modified at any time. N.C.Gen.Stat. § 50-16.9(a). However, the change must be substantial, and the moving party has the burden of proving that the award is either inadequate or unduly burdensome. Medlin v. Medlin, 64 N.C.App. 600, 307 S.E.2d 591 (1983). In the original order, the court clearly calculated the amount of alimony on the assumption that plaintiff would be able to secure a job paying at least minimum wage. That plaintiff has now done so has not substantially altered the relative positions of the parties. With respect to his own change in plans, defendant did not offer such evidence of increased expenses or other factors which would make his situation unduly burdensome. This assignment is overruled.

Defendant next contends that the trial court erred in making no findings of fact in its oral order as to the reasonableness of attorney's fees and as facts supporting his judgment of civil contempt. Defendant acknowledges that findings were made in the subsequent written order, but argues that, upon defendant's notice of appeal given in court after the oral order was entered, the cause was removed from the trial court and it had no power to proceed further and enter a written judgment. Defendant bases his theory upon G.S. § 1-294. That statute provides in pertinent part:

Scope of stay; security limited for fiduciaries. When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from....

Defendant misinterprets the meaning of the phrase "all further proceedings." This Court has previously held that pursuant to the provisions of N.C.Gen.Stat. § 1A-1, Rule 58 of the Rules of Civil Procedure, after "entry" of judgment in open court, a trial court retains the authority to approve the judgment and direct its prompt preparation and filing. See Condie v. Condie, 51 N.C.App. 522, 277 S.E.2d 122 (1981). Such authority necessarily includes making appropriate findings of fact and entering appropriate conclusions of law, and the giving of notice of appeal in open court after "entry" of judgment does not divest the trial court of such authority.

Defendant contends that there was insufficient evidence from which the court could find that plaintiff was without means to defray expenses of the action and that the trial court erred in awarding plaintiff partial payment of attorney's fees. We disagree. Plaintiff submitted a detailed affidavit of her income and expenses, as did defendant. Plaintiff's uncontradicted evidence showed that her monthly expenses exceeded her monthly income by $632.85. This was sufficient to support the trial court's finding that plaintiff lacked sufficient means to sustain the burden of attorney's fees in this action. See Beaman v. Beaman, 77 N.C.App. 717, 336 S.E.2d 129 (1985). This assignment of error is overruled, and the order of the trial court is

Affirmed.

HEDRICK, C.J., and BECTON, J., concur.