Armstrong v. Droessler

CALABRIA, Judge,

dissenting.

Because I disagree with the majority’s holding that the trial court’s findings were insufficient to support its conclusion that there was no change of circumstances justifying a modification of child support, I respectfully dissent.

North Carolina General Statutes § 50-13.7(a) (2005) states, “An order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances.” Royall v. Sawyer, 120 N.C. App. 880, 882, 463 S.E.2d 578, 579 (1995). The party requesting modification has the burden of demonstrating changed circumstances. McGee v. McGee, 118 N.C. App. 19, 26, 453 S.E.2d 531, 535 (1995) (citations omitted). In this case, the trial court specifically found, and plaintiff does not contest, that “the needs of the minor children have not decreased since the entry of the Consent Order.” Nonetheless, even when the children’s needs have not changed, a modification of child support may still be warranted if there is a substantial and involuntary decrease in a parent’s income that constitutes a changed circumstance. Mittendorff v. Mittendorff, 133 N.C. App. 343, 344, 515 S.E.2d 464, 466 (1999) (citations omitted). However, if there is a voluntary decrease in a parent’s income, even if substantial, it cannot constitute a changed circumstance if there is no decrease in the needs of the minor children. Schroader v. Schroader, 120 N.C. App. 790, 794, 463 S.E.2d 790, 793 (1995). Thus, in the case sub judice, because the minor children’s needs did not decrease, the only way plaintiff could establish a substantial change in circumstances would be by showing an involuntary decrease in his income. See Mittendorff, supra; Schroader, supra.

Yet, the pertinent findings of fact establish that any change of circumstance was voluntary:

4. At the time of entry of the Consent Order, Plaintiff was one-third owner of a company called Monolith, a computer software company. The company was for sale and the presumptive value of Plaintiffs share of the company was recited with the Consent Order at between $1 and $1.5 million. The parties knew at the time of the entry of the Consent Order that when the company sold, the Plaintiff would have to have new employment.

5. The company did, in fact, sell. To effectuate the sale, Plaintiff established a Domestic Non-Grantor Trust in the State of Nevada and transferred his shares of stock to the trust. His share of the company was purchased by the Buyer via payment of Plaintiff’s $1.3 million share of the purchase price into the trust in exchange for Plaintiff’s share of the company stock....

7. After the sale of Monolith, Plaintiff decided to pursue his dream of working in the aviation industry. He began working as a fundraiser for the Wright Brothers Centennial of Flight celebration[.] ... Plaintiff has an airplane which he used in fundraising and established a website for the marketing of “First in Flight” products and memorabilia. He conducted business under the name of “Five Star Marketing, Inc.” He worked in this capacity until January 2004 when the Centennial Celebration came to an end. Five Star Marketing, Inc. is an aviation marketing firm, marketing charter flights: In 2003, Plaintiff received $43,000.00 from the “First in Flight” celebration and also set up Buyitright.com a subsidiary to market VIP seating at the event. Plaintiff has since tried to secure employment with the North Carolina Department of Transportation in the aviation field.

8. Since the entry of the Consent Order, Plaintiff has remarried and his Wife makes a six figure income and contributes to his support.

12. At the time of the entry of the Consent Order, Plaintiff... knew [he] would be selling his interest in Monolith and could conceivably be without income or without the income he enjoyed[.] He also knew that he would have between $1 million and $1.3 million at his disposal but instead established a trust placing the funds beyond his reach, except for loans, and beyond the reach of creditors, and ensuring one half million dollars per year to himself at age 65.

These findings sufficiently establish that any decrease in plaintiffs income was voluntary in that plaintiff put between $1 million and $1.3 million dollars in, a trust where he could not reach it until age 65 and switched his career path by pursuing his dream job of working in the aviation industry. See Mittendorf, 133 N.C. App. at 344, 515 S.E.2d at 466 (holding a defendant’s voluntary redirection of his career could not support a modification of support when the minor children’s needs had not changed); Schroader, 120 N.C. App. at 795, 463 S.E.2d at 793 (holding that a custodial parent’s voluntary reduction in income by quitting her employment to attend school could not lead to modification of child support in the absence of her showing a change in circumstances relating to the needs of the minor children). Although the trial court does not use the word “voluntary” in its findings of fact, its language sufficiently establishes that plaintiff voluntarily made the choices that led to his current predicament. See Mittendorf, 133 N.C. App. at 344, 515 S.E.2d at 466. Since the findings establish that any decrease in income was voluntary, a modification of child support was impermissible given that the minor children’s needs did not decrease. See Schroader, 120 N.C. App. at 795, 463 S.E.2d at 793. Accordingly, I would hold that the trial court’s findings support its conclusion that there has been no change of circumstances warranting modification of child support, and I would affirm the order of the trial court.