Fischell v. Rosenberg

368 S.E.2d 11 (1988)

Tamara FISCHELL
v.
Martin ROSENBERG.

No. 8715DC901.

Court of Appeals of North Carolina.

May 17, 1988.

Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave by G. Nicholas Herman, Chapel Hill, for defendant-appellant.

Long & Long by Lunsford Long, Chapel Hill, for plaintiff-appellee.

ARNOLD, Judge.

In this case, defendant challenges the trial court's refusal to modify child support. Since defendant withdrew his notice of appeal from the order of 11 May 1987, filed a motion for rehearing and later filed a notice of appeal from the denial of that motion, the only proper appeal before this court is that of the denial of his motion for rehearing. Such a denial will only be overturned on appeal if there has been an abuse of discretion. Mumford v. Hutton & Bourbonnais Co., 47 N.C.App. 440, 267 S.E.2d 511 (1980). While the trial court erred in certain of its findings of fact and conclusions of law, the order is affirmed based upon defendant's failure to produce sufficient evidence of past child-oriented expenses.

In his brief, defendant correctly argues that the trial court erred in concluding as a matter of law that:

Defendant has failed to show any reason justifying modification of the prior order other than his voluntary cessation of employment; defendant has failed to request that this Court make a Finding of Fact regarding whether or not he left his employment in good faith to return to school; in any event, this Court concludes that the cases regarding such a requirement of good faith in order to apply the earning capacity test are not germane to the question where the party seeking to return to school has custody of the children as opposed to being the one who simply pays child support to the other parent; under such circumstances, the Court concludes that the custodial parent who returns to school voluntarily must make other arrangements to provide for the level of support he had been providing to the children in his custody, and cannot look to the other parent for such support, for to permit him to do so would be to permit him to obtain an indirect subsidy for his own education. (Emphasis added.)

Under G.S. 50-13.4 and 50-13.7, a party's ability to pay child support is ordinarily determined by the party's actual income at the time the support award is made or modified. Goodhouse v. DeFravio, 57 N.C.App. 124, 290 S.E.2d 751 (1982). However, if there is a finding by the trial court that the party was acting in bad faith by deliberately depressing his or her income or otherwise disregarding the obligation to pay child support, then the party's capacity to earn may be the basis for the award. Id. A trial court's conclusion underlying imposition of the earnings capacity rule must be based upon evidence that the actions which reduced the party's income were not taken in good faith. There must be sufficient evidence of the proscribed intent. Wachacha v. Wachacha, 38 N.C.App. 504, 248 S.E.2d 375 (1978).

The trial court in the present case determined that it was not necessary to make a finding of "bad faith" because the party seeking support modification was the custodial parent. There is absolutely no reason for such a determination in view of current case law. The trial court further incorrectly concluded that when a custodial parent seeks a change of child support based upon a reduction in income, that custodial parent must request the court to make a finding of fact as to his or her "good faith." This conclusion simply does not follow established case law. In summary, the trial court erred in concluding that defendant's reduction in income could not be considered on his motion to increase plaintiff's child support obligations. However, the order is affirmed for the following reason.

It has been established in North Carolina that orders for child support must be based upon the amount of support necessary to meet the reasonable needs of the child and the relative ability of the parties to provide that amount. Byrd v. Byrd, 62 N.C.App. 438, 303 S.E.2d 205 (1983); G.S. 50-13.4. Such an order, however, may be modified at any time, upon a showing of changed circumstances. G.S. 50-13.7; Tate v. Tate, 9 N.C.App. 681, 177 S.E.2d 455 (1970). The changed circumstances with which courts are concerned involve child-oriented expenses. Gilmore v. Gilmore, 42 N.C.App. 560, 257 S.E.2d 116 (1979). The moving party must present evidence of the child-oriented expenses, including the amount of those expenses at the time of the original support hearing. Waller v. Waller, 20 N.C.App. 710, 202 S.E.2d 791 (1974). The movant assumes the burden of showing that circumstances have changed between the time of the original order and the time of the hearing of his or her motion for modification. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

While defendant in the case sub judice presented some evidence of present and future expenses, he presented no evidence of the child-oriented expenses at the time of the prior hearing. The trial court did not have all of the evidence necessary to establish a change of circumstances and did not err in refusing to modify plaintiff's child support. Therefore, there was no abuse of discretion in the denial of defendant's motion for rehearing.

Affirmed.

BECTON and PARKER, JJ., concur.