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Dishmon v. Dishmon

Filed: June 15, 1982.

BETTY COLEMAN DISHMON
v.
OTIS LEON DISHMON



Appeal by defendant from McHugh, Judge. Judgment entered 11 May 1981 in District Court, Rockingham County. Heard in the Court of Appeals 25 May 1982.

Martin (Harry C.), Judge. Judges Vaughn and Hill concur.

Martin

Defendant is of the opinion that the trial court denied his motion to reduce the amount of support payments he was obligated to pay under the 5 March 1979 agreement. The record does not support his contention. Defendant did not ask for a greater reduction than that to which he was entitled under the agreement. The sum of $300, the "reduction" which defendant sought, represents the amount defendant properly owes after subtracting a pro rata amount of $150 for the emancipated son.

Further, we are of the opinion that defendant's evidence was, in any event, insufficient to support any reduction other than that to which he was entitled. The fact that defendant has voluntarily assumed the responsibility of supporting his emancipated son is

not a factor to be considered in determining a change of circumstances sufficient to support a reduction. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967); Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979). Defendant offered no evidence with respect to changed circumstances affecting the remaining minor children or that expenses relating to their maintenance and support had decreased. Gilmore, supra; Ebron v. Ebron, 40 N.C. App. 270, 252 S.E.2d 235 (1979). Nor has defendant offered sufficient evidence to support a finding of his inability to pay the required amount.

Defendant contends that the trial court erred in ordering an increase in child support payments absent evidence or findings of a change in circumstances affecting the children's welfare. In response, plaintiff first asks that we draw a distinction between judgments of the court ordering child support and consent judgments wherein the amount of child support is agreed to by the parties. The thrust of plaintiff's argument is that a showing of changed circumstances would not be a necessary prerequisite to the court's setting an amount for child support if the prior agreement was not an "order" of the court. Plaintiff urges that the 5 March 1979 consent judgment was not court ordered. Assuming, arguendo, that the original agreement entered into by the parties is a contract rather than a court-ordered consent judgment, the trial court's findings of fact do not support an award of child support in the amount of $350.

Our Supreme Court has most recently stated the law with respect to setting amounts for child support in Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980).

Where, as here, the trial court sits without a jury, the judge is required to "find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." . . . The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment -- and the legal conclusions which underlie it -- represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead "to

dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial syatem." . . .

Under G.S. 50-13.4(c) . . . an order for child support must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to "meet the reasonable needs of the child" and (2) the relative ability of the parties to provide that amount. These conclusions must themselves be based upon factual findings specific enough to indicate to the appellate court that the judge below took "due regard" of the particular "estates, earnings, conditions, [and] accustomed standard of living" of both the child and the parents. It is a question of fairness and justice to all ...


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