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Russ v. Russ

Filed: September 18, 1979.

MASLIN H. RUSS
v.
ZACK RUSS, JR.



Appeal by defendant from Bulwinkle, Judge. Order entered 19 July 1978 in District Court, Gaston County. Heard in the Court of Appeals 21 August 1979.

Arnold, Judge. Judges Hedrick and Vaughn concur.

Arnold

Defendant contends that the trial court erred in making findings of fact and conclusions of law pertaining to arrearages he allegedly owed, and in conditioning the reduction of alimony upon defendant's payment of these arrearages. We agree.

G.S. 50-16.9(c) provides that a court of this state with personal jurisdiction over both parties may, upon a showing of changed circumstances, modify the alimony order of another jurisdiction. At the trial of defendant's counterclaim, the court found a substantial change of circumstances, and concluded that the change was such that the alimony payments should be reduced by half.

The court's additional findings and conclusions relating to arrearages on defendant's part have no basis in the evidence. That matter was not before the court at the trial of defendant's counterclaim; plaintiff's action for enforcement of the Florida arrearage judgment remained in the Superior Court after severance. No evidence as to arrearages was presented at trial. The trial court apparently based his findings and conclusions upon information contained in plaintiff's complaint in the original action, but this information should not have been before the District Court. Since these findings and conclusions have no basis in the evidence properly before the court, they cannot stand. See Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977).

When these improper findings and conclusions are disregarded, the court's order holds that defendant is entitled to have his alimony payments reduced to $300 per month. The trial court's order as so modified is affirmed.

Modified and affirmed.

Disposition

Modified and affirmed.

19790918

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