Wyatt v. Wyatt

231 S.E.2d 42 (1977) 32 N.C. App. 162

Charles M. WYATT
v.
Judy P. WYATT.

No. 7625DC591.

Court of Appeals of North Carolina.

January 5, 1977.

McMurray, Triggs & Hodges by John H. McMurray and Robert E. Hodges, Morganton, for plaintiff.

Byrd, Byrd, Ervin & Blanton by Joe K. Byrd, Morganton, for defendant.

BROCK, Chief Judge.

Two questions are presented to this Court for review. First, were there sufficient findings of fact by the trial court on the ability of the plaintiff to meet what the court found to be the needs of the child? Secondly, was the court correct in ordering payment of legal fees without finding as facts that the fees were reasonable and that the plaintiff had refused to provide support which was adequate under the circumstances existing at the time of the institution of the proceeding?

As to the first question, it is well settled in North Carolina that it is the father's legal obligation to support his minor children. Holt v. Holt, 29 N.C.App. 124, 223 S.E.2d 542 (1976). The amount of child support awarded is in the discretion of the trial judge and will be disturbed only on a showing of abuse of that discretion. Sawyer v. Sawyer, 21 N.C.App. 293, 204 S.E.2d 224 (1974). The trial court's discretion, however, is not absolute and unreviewable. The order must be based not only on the needs of the child but also on the ability of the father to meet the needs. Holt v. Holt, supra. But where there is a finding of ability to pay supported in the record by competent evidence, that finding will be conclusive. Sawyer v. Sawyer, supra.

In the previous opinion in this case, this Court held there had been findings of need and of ability to pay beyond the $65.00 provided monthly by the plaintiff. At the second hearing to ascertain the current ability of the plaintiff to pay, the court made detailed findings as to plaintiff's income and expenses. There was evidence that his financial situation had changed since the first hearing due to the birth of twins to his second wife. But there was also evidence that his monthly earnings had increased, that his Veterans Administration student benefits had increased, and that his present wife was employed and also receiving child support payments from her previous husband. There was evidence that plaintiff owned golf equipment worth $500.00 and that he maintained an annual membership at a golf club. Just prior to the second hearing, plaintiff purchased a $4,000.00 automobile for his second wife.

The finding of the trial court that the plaintiff had the ability to pay the support ordered is supported in the record by competent evidence. No abuse of discretion appears concerning the support order.

As to the second question, plaintiff contends there were insufficient findings of fact to support the award of attorney's fees. We agree.

General Statute 50-13.6 authorizes the court to order payment of legal fees if there are findings of fact that the fee is reasonable, that the moving party is acting in good faith without sufficient means to defray legal expenses, and that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the suit. In this case there are adequate findings showing that the defendant acted in good faith without sufficient financial means and that plaintiff had refused to provide adequate support.

The partial listing of legal expenses, however, is an insufficient finding of fact as to the reasonable worth of attorney's fees. Rickenbaker v. Rickenbaker, 21 N.C.App. 276, 204 S.E.2d 198 (1974); Austin v. Austin, 12 N.C.App. 286, 183 S.E.2d 420 (1971).

That part of Judge Tate's order setting child support is affirmed. That part of the order awarding attorney's fees is vacated and remanded for further proceedings in accordance with this opinion.

Affirmed in part, vacated in part, and remanded.

BRITT and MORRIS, JJ., concur.