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Gilmore v. Gilmore

Filed: August 7, 1979.

MARGARET M. GILMORE
v.
JOHN HORACE GILMORE



Appeal by plaintiff from Matthews, Judge. Judgment entered 24 May 1978 in District Court, Nash County. Heard in the Court of Appeals 21 May 1979.

Morris, Chief Judge. Judges Hedrick and Webb concur.

Morris

Prior to consideration of this action on the merits, we offer this observation concerning plaintiff's preparation of the Record on Appeal. Plaintiff has sufficiently set out in the record her exceptions to the judgment of the court. See North Carolina Rules of Appellate Procedure, Rule 10(b)(2). However, plaintiff has placed unnecessarily repetitious matter in the record. In the interest of economy of expense and judicial time, plaintiff should have set out her exceptions within the order as it properly appears in the record on pages 52 through 59. It was unnecessarily repetitious to reprint thereafter the entire order therein setting out the exceptions on appeal.

It is firmly established in this State that a decree of child support is not final, but is subject to modification upon a showing that the circumstances have so changed since the previous order as to justify a modification in the award. G.S. 50-13.7; Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). The changed circumstances with which the courts are concerned are those which relate to child-oriented expenses. See Waller v. Waller, 20 N.C. App. 710, 202 S.E.2d 791 (1974); see also Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963) (change of circumstances affecting child or children). The burden is upon the party seeking the modification to establish the requisite change in circumstances. Crosby v. Crosby, supra.

Defendant's showing of changed circumstances relates almost exclusively to the additional expenses to which he has obligated himself. These include the expenses of sending a child who has reached majority to college, the expenses of his new home and family, and the additional travel and telephone expense incident to visiting his children from out of State. Defendant has made no showing with respect to changed circumstances affecting the remaining minor children. He has made no showing that the expenses relating to their maintenance and support have decreased proportionately one third. Absent proof of this fact, it is impermissible to presume that such child-oriented expenses are proportionally divisible. The presumption, if any is appropriate at all, would be to the contrary in light of the fixed and indivisible costs of providing a home, and the varying requirements of the children. Compare Friedman v. Friedman, 521 S.W. 2d 111 (Tex.

Civ. App. 1975); Cosgrief v. Cosgrief, 126 N.W. 2d 131 (N.D. 1964); Cooper v. Matheny, 220 Ore. 390, 349 P. 2d 812 (1960).

We are not inadvertent to the statutory mandate that the court, when exercising its discretionary power to determine the appropriate amount of child support, shall consider the relative ability of the parties to provide support for dependent children. See G.S. 50-13.4. Indeed, the evidence in this record shows a rather substantial increase in the defendant's ability to pay child support, whereas defendant has not satisfied his burden to prove, as he alleged, that the plaintiff's earnings have substantially increased. Indeed, the evidence shows that defendant's present wife makes a substantial contribution to the household. Although defendant alleges that his needs and obligations have substantially increased, it is clear from the record that such obligations result primarily from (1) entering into another marital and family relationship, and (2) assuming the obligation of providing for the expense of sending his eldest son to the University of Virginia. Both increases in expenses were voluntarily assumed additional obligations which, although they may render the child support payments more burdensome, do not justify a reduction in such payments. See Crosby v. Crosby, supra (child support payments); Sayland v. Sayland, 267 N.C. 378, 148 S.E.2d 218 (1966) (alimony payments). The fact that defendant voluntarily has assumed the financial burden to send his eldest child to a high-tuition, out-of-state university does not justify the court in considering this factor in lowering child support payments. See Crouch v. Crouch, 14 N.C. App. 49, 187 S.E.2d 348 (1972), cert. denied, 281 N.C. 314, 188 S.E.2d 897 (1972). Cf. Bringgs v. Briggs, 312 So. 2d 762 (Fla. App. 1975); West v. West, 131 Vt. 621, 312 A. 2d 920 (1973); Crane v. Crane, 45 Ill. App. 2d 316, 196 N.E. 2d 27 (1964). See generally Annot., 56 A.L.R. 2d 1207 (1957).

Plaintiff contends that she is entitled to attorney's fees to defray the expense of resisting defendant's motion for reduction in alimony and child support payments. An award under either G.S. 50-13.6 for "reasonable attorney's fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit" or under G.S. 50-11(c) and G.S. 50-16.4 applying the doctrine of Shore v. Shore, 15 N.C. App. 629, 190 S.E.2d 666 (1972), is appropriate upon a finding by the trial court in the exercise of its discretion that the plaintiff is unable to defray the expense

of the suit. There is no such finding by the trial court, and the evidence does not compel such a conclusion. The trial court's exercise of its authority to grant or disallow attorney's fees, when properly exercised in accordance with statutory requirements, must stand. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975). There is no showing of an abuse of discretion. Moreover, the court did not find, as it must do before ordering defendant to pay attorney's fees under G.S. 50-13.6, that the defendant refused to provide adequate support at the time the action was instituted. In fact, the trial court specifically found to the contrary. The fact that plaintiff voluntarily had agreed to a $75 per month reduction of support payments substantiates that finding.

That part of the order of the trial court decreasing by one third the amount of child support payments is reversed. That part of the order denying plaintiff attorney's fees for ...


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