Holderness v. Holderness

370 S.E.2d 602 (1988)

Catherine Darrah HOLDERNESS
v.
Howard HOLDERNESS, Jr.

No. 8818DC109.

Court of Appeals of North Carolina.

August 2, 1988.

Luke Wright, Greensboro, for plaintiff-appellee.

Smith, Helms, Mulliss & Moore by Ramona J. Cunningham and Jeri L. Whitfield, Greensboro, for defendant-appellant.

SMITH, Judge.

Defendant brings forward several assignments of error and puts forth as his primary argument the trial court's failure to make adequate findings of fact and conclusions of law. He contends that the court's findings of fact are inadequate to support its conclusions as to the amount reasonably required for the support of the children, defendant's ability to pay that amount and plaintiff's ability to contribute to such support. We agree.

In an action to modify child support provisions of a separation agreement which has not previously been incorporated into an order or judgment of the court, the court is called upon, for the first time, to make a determination that the reasonable needs of the children are provided for in accordance with the abilities of those responsible for the children's support. Boyd v. Boyd, 81 N.C.App. 71, 343 S.E.2d 581 (1986). "[T]he moving party's only burden is to show the amount of support necessary to meet the reasonable needs of the child[ren] at the time of the hearing." Id at 76, 343 S.E.2d at 585.

To comply with G.S. 50-13.4(c), the trial court is required to make findings of fact with respect to the factors listed in the statute. Boyd v. Boyd, supra; Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985). "It is not enough that there may be evidence in the record sufficient to support findings which could have been made." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). The trial court must make findings of fact on the parties' incomes, estates and present reasonable expenses in order to determine their relative ability to pay. Newman v. Newman, 64 N.C.App. 125, 306 S.E.2d 540, disc. rev. denied, 309 N.C. 822, 310 S.E.2d 351 (1983). Such findings are required for the appellate court to determine whether the trial court gave "due regard" to the factors listed. Boyd v. Boyd, supra. See Atwell v. Atwell, 74 N.C.App. 231, 328 S.E.2d 47 (1985).

The record in the present case contains evidence with respect to the income and estates of each of the parties. Notwithstanding this evidence, the trial court made no findings as to their reasonable expenses. Without findings relating to parties' reasonable expenses, there is no basis for a determination as to the parties' relative abilities to provide the support necessary to meet the reasonable needs of the children. Boyd v. Boyd, supra. The order in this case fails to meet these requirements.

The trial court's order is also deficient in its findings of fact regarding the children's reasonable needs. In plaintiff's affidavit, the itemized expenses for the children totalled $3,897.06 per month. In reviewing these expenses, the trial judge indicates in his order without making a specific finding that child care expenses and the proportion of fixed household expenses attributed to the children appeared to be high. However, he found the monthly needs of the children to be the exact amount set forth in plaintiff's affidavit, $3,897.06. This finding was made notwithstanding the fact that the order recites that plaintiff's counsel admitted that $600.00 miscellaneous expenses no longer existed. "In order to determine the reasonable needs of the child, the trial court must hear evidence and make findings of specific fact on the child's actual past expenditures and present reasonable expenses." Atwell v. Atwell, 74 N.C.App. at 236, 328 S.E.2d at 50. The order contains no specific findings with respect to the actual past or present expenses incurred for the support of these children and is, therefore, insufficient to support the court's conclusion that the reasonable needs of the children amounted to $2,800.00 per month. Having held the order deficient, there is no need to address defendant's other assignments of error.

For the foregoing reasons, this case is remanded for findings of fact and conclusions of law in accordance with this opinion.

Vacated and remanded.

EAGLES and ORR, JJ., concur.