Young v. Young

736 S.E.2d 538

Henry O. YOUNG, III, Plaintiff,

v.Jennifer Marie YOUNG, (Now Hopper), Defendant.

No. COA12–484.

Court of Appeals of North Carolina.

Dec. 18, 2012.

Appeal by Plaintiff from orders entered 9 November 2011, 2 December 2011, and 4 January 2012 by Judge Doretta L. Walker in Durham County District Court. Heard in the Court of Appeals 25 September 2012.

The Law Office of Colon & Associates, PLLC, Wake Forest, by Arlene L. Velasquez–Colon, for Plaintiff–Appellant.

Sharpe, Mackritis & Dukelow, P.L.L.C., Durham, by Lisa M. Dukelow, for Defendant–Appellee.

BEASLEY, Judge.

Henry O. Young, III, (Plaintiff) appeals from an order granting Defendant's motion for directed verdict on Plaintiff's motion for modification of child support, a commitment order, and an order for contempt. For the following reasons, we affirm the orders of the trial court.

Plaintiff and Defendant were married on 3 November 2001, separated on 13 August 2007, and subsequently divorced. They have three children together. On 26 June 2008, Plaintiff filed a complaint for child custody. Defendant answered and filed a counterclaim for custody as well. The parties entered a Separation and Property Settlement Agreement on 31 October 2008. On 19 December 2008, the parties agreed to a Consent Judgment with respect to child support and child custody. This order gave primary physical custody to Defendant, but legal custody remained shared.

Plaintiff lost his job on 29 September 2010. He began collecting unemployment benefits in the amount of $506 per week. On 29 October 2010, Plaintiff filed financial and wage affidavits. On 2 December 2010, Plaintiff filed a motion for Modification of Child Support, pro se. Defendant filed financial and wage affidavits on 3 and 4 March 2011. Defendant filed a Motion for Contempt and Attorney's Fees and a Motion for Modification of Child Custody, which was heard by the court, after several continuances, on 10 March 2011. The trial court's order from this hearing, dated 18 April 2011, found Plaintiff in contempt for failure to pay child support and ordered payment of the mortgage in accordance with the Separation Agreement. It also awarded Defendant sole legal custody. Plaintiff's Motion for Modification was dismissed by the court on 19 July 2011 for failure to file a financial affidavit. On 22 August 2011, Plaintiff filed a Rule 60 motion providing proof of timely filing of a financial affidavit. Defendant filed another Motion for Contempt and Attorney's Fees on 25 October 2011. Plaintiff's Rule 60 motion was granted and a hearing on modification was held on 9 November 2011. At the close of Plaintiff's evidence, Defendant made a Rule 58 Motion for a Directed Verdict, alleging Plaintiff failed to present evidence of a substantial change. The trial court denied Plaintiff's Motion for Modification, finding no substantial change of circumstance, thereby granting Defendant's Motion for Directed Verdict (“Order 1”).

On 2 December 2011, the trial court heard Defendant's Motion for Contempt and Attorney's Fees. Plaintiff requested the assistance of court-appointed counsel due to the risk of incarceration, but was denied. At the close of the hearing, the trial court issued a civil commitment order (“Order 2”) requiring the first of several scheduled payments by 5 p.m. that day or Plaintiff was to be taken into custody. In a court order filed 4 January 2012 (“Order 3”), the trial court found Plaintiff in contempt for violating the Consent Judgment of 19 December 2008 and the court order of 18 April 2011.

I.

Plaintiff first argues that the trial court erred in granting Defendant's motion for directed verdict and thereby dismissing Plaintiff's motion for modification of child support in Order 1. We disagree.

“Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a determination of whether there was a clear abuse of discretion.” Leary v. Leary, 152 N.C.App. 438, 441, 567 S.E.2d 834, 837 (2002). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). “The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.” Spicer v. Spicer, 168 N.C.App. 283, 287, 607 S.E.2d 678, 682 (2005).

“[A]n 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 by either party[.]” N.C. Gen.Stat. § 50–13.7(a) (2011).

Modification of an order requires a two-step process. First, a court must determine whether there has been a substantial change in circumstances since the date the existing child support order was entered....

....

Upon finding a substantial change in circumstances, the second step is for the court to enter a new child support order that modifies and supersedes the existing child support order.

Head v. Mosier, 197 N.C.App. 328, 333–34, 677 S.E.2d 191, 196 (2009) (citations omitted). “The trial court only moves to the second step if the court finds there has been a substantial change in circumstances.” Johnston County ex rel. Bugge v. Bugge, ––– N.C.App. ––––, ––––, 722 S.E.2d 512, 514 (2012) (citation omitted). A substantial change in circumstances may be demonstrated by proving the non-custodial parent suffered “a substantial and involuntary decrease in income[,]” or either parent, in good faith, suffered “a voluntary decrease in income” and the child's financial needs changed. Frey v. Best, 189 N.C.App. 622, 631–32, 659 S.E.2d 60, 68 (2008) (citation omitted). However, “[t]he fact that a husband's salary or income has been reduced substantially does not automatically entitle him to a reduction.” Wolf v. Wolf, 151 N.C.App. 523, 526, 566 S.E.2d 516, 518 (2002)(citing Medlin v. Medlin, 64 N.C.App. 600, 307 S.E.2d 591 (1983)). “When the evidence shows that a party has acted in ‘bad faith,’ the trial court may refuse to modify the support awards.” See Wolf, 151 N.C.App. at 527, 566 S.E.2d at 519 (citing Chused v. Chused, 131 N.C.App. 668, 671, 508 S.E.2d 559, 561–62 (1998)).

Plaintiff contends that the trial court erred in failing to find that Plaintiff's motivation in not looking for employment in good faith was to avoid child support obligations. The trial court concluded that Plaintiff failed to meet his burden of showing a substantial material change in circumstances that would warrant a modification. Thus, the trial court found Plaintiff failed to satisfy the first step of review. It supported this conclusion with the following findings of fact, all supported by the evidence: Plaintiff only provided the court with proof of five job applications over the previous year and provided no evidence of others, outside of his testimony; Plaintiff failed to apply for seasonal work; Plaintiff failed to provide evidence of employment sought in other fields outside his own area of expertise; Plaintiff chose to move to a rural area with fewer job opportunities and claimed the expense of a commute limited his job search, despite continuing to travel often to the Raleigh/Durham area to see his children; Plaintiff failed to report income received from the Navy for participation in Voluntary Drills; and Plaintiff chose to purchase an additional insurance policy for his children despite the fact that Defendant's policy from her employment covered the children. Additionally, the trial court found that Plaintiff's testimony regarding employment was contradictory and “was not completely honest.” We find that these facts sufficiently support the trial court's conclusion that Plaintiff failed to meet his burden of showing a substantial change in circumstance. Plaintiff failed to prove either that his sustained unemployment is involuntary, given his lack of proof with regard to his job search effort and his self-imposed restrictions on his search, or that, even if voluntary, it was in good faith. See Frey, 189 N.C.App. at 631–32, 659 S.E.2d at 68. Defendant's argument is overruled.

Plaintiff additionally argues that the trial court should have heard his evidence regarding Defendant's failure to submit a financial affidavit or other necessary information to determine whether a change had occurred. However, Defendant's financial status has no bearing on Plaintiff's ability to meet his support obligations due to his unemployment. According to the two-step process of review, if Plaintiff is not able to establish the grounds of this change in good faith, it is not necessary to reassess the child support allocations between the parents. See Wolf, 151 N.C.App. at 527, 566 S.E.2d at 519 (citation omitted). Further, the trial court properly denied review and consideration of these documents dated 5 August 2008 because they predated the most recent order from March of 2011. See Shipman v. Shipman, 25 N.C.App. 213, 216, 212 S.E.2d 415, 417 (1975)(finding it necessary to review the circumstances of the case only since the most recent decree, not since the initial order).

Last, Plaintiff refers to the Child Support Guidelines to claim that he has suffered more than a fifteen percent reduction in income since the support order, which constitutes a change in circumstances warranting a modification. However, this presumption only applies in the event three years have passed since the initial order. As such, this presumption does not apply here.

II.

Plaintiff makes several other assertions with regard to his 2 December 2010 Motion for Modification. Particularly, Plaintiff argues the trial court erred by failing to hear this motion in conjunction with Defendant's motions for contempt, attorney's fees, and modification, heard on...