{ "id": 8524862, "name": "RAZIA SAVANI v. NOORALI K. SAVANI", "name_abbreviation": "Savani v. Savani", "decision_date": "1991-04-16", "docket_number": "No. 9010DC773", "first_page": "496", "last_page": "507", "citations": [ { "type": "official", "cite": "102 N.C. App. 496" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "57 ALR4th 710", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "335 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 632", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524740 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0632-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "opinion_index": 0 }, { "cite": "328 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523873 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0231-01" ] }, { "cite": "331 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526034 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0425-01" ] }, { "cite": "290 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571060 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0446-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "opinion_index": 0 }, { "cite": "320 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524491 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0690-01" ] }, { "cite": "326 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719540 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0063-01" ] }, { "cite": "332 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526939 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0213-01" ] }, { "cite": "268 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "300 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564644 ], "year": 1980, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0708-01" ] }, { "cite": "310 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0 }, { "cite": "309 N.C. 822", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763336, 4764105, 4762317, 4760943, 4767702 ], "year": 1983, "pin_cites": [ { "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0822-05", "/nc/309/0822-02", "/nc/309/0822-01", "/nc/309/0822-04", "/nc/309/0822-03" ] }, { "cite": "306 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "542", "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526303 ], "year": 1983, "pin_cites": [ { "page": "127-28", "parenthetical": "quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0125-01" ] }, { "cite": "381 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527721 ], "year": 1989, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0670-01" ] }, { "cite": "360 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358443 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0392-01" ] }, { "cite": "314 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526828 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0170-01" ] }, { "cite": "331 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "706" }, { "page": "706", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526797 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0145-01" ] }, { "cite": "309 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762459 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0695-01" ] }, { "cite": "300 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520630 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0275-01" ] }, { "cite": "230 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "291 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557966 ], "year": 1976, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0303-01" ] }, { "cite": "388 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "211", "parenthetical": "quoting Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976)" }, { "page": "209" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520189 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "234", "parenthetical": "quoting Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0227-01" ] }, { "cite": "247 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553813 ], "year": 1978, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0353-01" ] }, { "cite": "400 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "739-40", "parenthetical": "first set of presumptive guidelines in effect from 1 October 1989 through 30 September 1990" } ], "opinion_index": 1 }, { "cite": "101 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528011 ], "year": 1991, "pin_cites": [ { "page": "622-23", "parenthetical": "first set of presumptive guidelines in effect from 1 October 1989 through 30 September 1990" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0617-01" ] }, { "cite": "399 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "401", "parenthetical": "setting out eight statutory criteria" } ], "opinion_index": 1 }, { "cite": "101 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527708 ], "year": 1991, "pin_cites": [ { "page": "353-54", "parenthetical": "setting out eight statutory criteria" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0351-01" ] } ], "analysis": { "cardinality": 854, "char_count": 25039, "ocr_confidence": 0.747, "pagerank": { "raw": 3.8454590167779994e-07, "percentile": 0.8993840953661777 }, "sha256": "7b94e1e80410d74bc701b0437a7acd88f172e1b9d316b8f89993919404b8625b", "simhash": "1:0524d7222c0beaf6", "word_count": 4081 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Wells concurs.", "Judge GREENE concurs in a separate opinion." ], "parties": [ "RAZIA SAVANI v. NOORALI K. SAVANI" ], "opinions": [ { "text": "WYNN, Judge.\nThis appeal was instituted by defendant following an order granting plaintiff child support, attorney\u2019s fees, and modified visitation. For the reasons which follow, we affirm.\nPlaintiff and defendant were married on 28 January 1983. One child was born of the marriage, Junaid Noorali Savani, on 7 February 1984. The parties separated in 1986 and an order awarding custody of their child to defendant was entered on 26 May 1986. In October 1986, plaintiff and defendant reconciled, and lived together until 9 December 1987.\nOn 15 January 1988, plaintiff filed a motion for change of custody, attorney\u2019s fees and child support. After four days of hearings during the 22 August 1988 Session of the District Court of Wake County, Judge Leonard entered an order on 24 October 1988 granting custody of the child to plaintiff and awarding child support in an amount to be determined after submission of financial affidavits by the parties to the court. A visitation schedule was also included in the order. Attorney\u2019s fees were not awarded in this order. Defendant gave notice of appeal on 28 October 1988 and dismissed his appeal on 1 January 1989.\nOn 22 May 1989, plaintiff filed a motion for hearing and entry of order setting child support and attorney\u2019s fees. Prior to a hearing on plaintiff\u2019s motion, plaintiff filed an additional motion to modify visitation on 28 June 1989. After several continuances requested by the defendant, a hearing was held on both motions on 24 October 1989. An order was entered 1 November 1990, granting plaintiff retroactive and prospective child support, attorney\u2019s fees and a modified visitation schedule. This appeal followed.\nI\nDefendant raises eight issues within seven assignments of error. First, defendant assigns error to the trial judge\u2019s refusal to recuse himself from hearing the case at bar. Defendant advances the following three arguments in support of this motion: 1) the trial judge presided over the modification of custody hearing in November 1988, which transferred custody of the child from defendant to plaintiff, 2) the trial judge had presided over a hearing on 22 September 1989 concerning child support, the same issue to be tried on 24 October 1989, in which defendant was scheduled to be present but failed to appear due to inclement weather, and 3) the trial judge and plaintiff\u2019s counsel of record shared office space at some earlier point in time while the judge was in private practice.\nCanon 3(c)(1) of the Code of Judicial Conduct directs that, \u201c[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . The test to apply in deciding what is reasonable is whether \u201ca reasonable man knowing all the circumstances would have doubts about the judge\u2019s ability to rule on the motion to recuse in an impartial manner.\u201d McClendon v. Clinard, 38 N.C. App. 353, 356, 247 S.E.2d 783, 785 (1978).\nA careful review of the record and defendant\u2019s basis for his recusal motion shows that the circumstances here do not reasonably warrant questioning Judge Leonard\u2019s impartiality. During the custody hearing of November 1988, Judge Leonard found as a fact and concluded that the child was in need of support. A later hearing to determine the amount was to be scheduled following the parties submitting financial affidavits to the court. Judge Leonard ordered the parties to submit these affidavits no later than 25 November 1988. Plaintiff submitted her affidavit on 28 November 1988, and defendant did not submit his affidavit until almost one year later. We fail to see how the trial judge\u2019s impartiality could reasonably be questioned in the second hearing when he had already ordered defendant to pay support during the first hearing.\nThe fact that Judge Leonard heard evidence on the support issue on 22 September 1989 in defendant\u2019s absence is also not adequate grounds to require findings of fact on the issue of recusal. \u201cA trial judge should recuse himself or refer the recusal motion to another judge if there is \u2018sufficient force in the allegations contained in defendant\u2019s motion to proceed to find facts.\u2019 \u201d Kaufman v. Kaufman, 97 N.C. App. 227, 234, 388 S.E.2d 207, 211 (1990) (quoting Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976)). The record reflects that both plaintiff and defendant had notice of this hearing and both were prepared to attend. Defendant did not attend due to Hurricane Hugo, but was not able to notify Judge Leonard of this fact until 26 September 1989. As soon as Judge Leonard learned of defendant\u2019s excusable absence, he set aside the proceedings of that hearing. Defendant\u2019s claim that he was prejudiced by this hearing because he did not get to cross-examine plaintiff\u2019s testimony nor present his testimony is without merit. Both parties had a full and fair opportunity to present evidence and cross-examine proffered testimony during the October 1989 hearing.\nNext, defendant argues that Judge Leonard should have re-cused himself on the ground that he had shared office space with plaintiff\u2019s counsel when Judge Leonard was in private practice. At first glance, this argument poses a closer question than defendant\u2019s other recusal arguments. We do not believe, however, when all the circumstances are considered, that defendant was prejudiced by Judge Leonard\u2019s refusal to recuse himself on this ground. See Lowder v. All Star Mills, Inc., 60 N.C. App. 275, 300 S.E.2d 230 (1983), modified on other grounds, 309 N.C. 695, 309 S.E.2d 193 (1983).\nDuring the custody hearing, plaintiff\u2019s lead counsel was an attorney from Georgia who obtained permission to represent plaintiff in the modification of custody proceeding. Mr. Lebowski\u2019s affidavit for attorney\u2019s fees states that he represented plaintiff in this capacity until 26 August 1988. At that point, Judge Leonard had already determined that custody should be awarded to plaintiff, and that the child was in need of support. Defendant\u2019s testimony during the hearing of October 1989 also acknowledged that the child was in need of support. Therefore, the primary issue before Judge Leonard by the time Mr. Kirkman became plaintiff\u2019s lead counsel was the amount of support to be provided. Based on all the circumstances, we do not agree that a reasoning person would question Judge Leonard\u2019s impartiality. This assignment of error is overruled.\nII\nDefendant by his second assignment of error alleges that there were insufficient findings of fact to support the court\u2019s award of retroactive child support.\nA party requesting retroactive child support can seek an order for reimbursement of the nonsupporting parent\u2019s share of reasonably necessary expenditures made in the past for support of the child. See Buff v. Carter, 76 N.C. App. 145, 331 S.E.2d 705 (1985); Warner v. Latimer, 68 N.C. App. 170, 314 S.E.2d 789 (1984). A trial court must make specific factual findings to support an award of reimbursement for past support. Sloan v. Sloan, 87 N.C. App. 392, 360 S.E.2d 816 (1987). The party seeking retroactive child support must present sufficient evidence of the expenditures made in the past on behalf of the child, and that these expenditures were reasonably necessary. See, generally, Buff at 146, 331 S.E.2d at 706; See also Rawls v. Rawls, 94 N.C. App. 670, 675, 381 S.E.2d 179, 182 (1989) (stating that \u201cretroactive child support payments are recoverable for amounts actually expended on the child\u2019s behalf . . . An award of retroactive child support must also take into account the defendant\u2019s ability to pay during the period in the past for which reimbursement is sought. Buff, supra, at 146, 331 S.E.2d at 706 (citations omitted).\nHere, the plaintiff presented an affidavit of the expenses she incurred following the child\u2019s placement in her custody. Contrary to defendant\u2019s assertion that plaintiff\u2019s affidavit did not constitute evidence of actual expenditures, an affidavit is recognized by this court as a basis of evidence for obtaining support. See Kaufman v. Kaufman, 97 N.C. App. 227, 388 S.E.2d 207 (1990). Here, plaintiff enumerated expenses for the child in the amount of $681.00 per month as of 28 November 1988. She then testified that her monthly expenses for the child as of 24 October 1989 were $770.00 per month, and that this was an increase of $89.00 from her November 1988 affidavit due to early school care of $15.00 per month and $75.00 per month for additional child care. Based on this evidence, the trial court found that the plaintiff had expenses for the child of at least $7,627.20 for the period 19 November 1988 through 24 October 1989. The Court found this amount to be reasonable under the circumstances taking into account plaintiff\u2019s income, the needs of the child, the income of the defendant and the accustomed standard of living of the child with defendant. Since there is evidence in the record to support the trial judge\u2019s findings of fact and subsequent conclusions of law, this assignment of error is overruled.\nIll\nDefendant\u2019s next two assignments of error address the sufficiency of the evidence to support the trial court\u2019s award of prospective child support. For the reasons which follow we find no error.\nUnder G.S. 50-13.4(c) ... an order for child support must be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to \u201cmeet the reasonable needs of the child\u201d 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 \u201cdue regard\u201d of the particular \u201cestates, earnings, conditions, [and] accustomed standard of living\u201d of both the child and the parents.\nNewman v. Newman, 64 N.C. App. 125, 127-28, 306 S.E.2d 540, 542, disc. review denied, 309 N.C. 822, 310 S.E.2d 351 (1983) (quoting Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980)). \u201cEvidence of actual past expenditures is essential in determining [a child\u2019s] present reasonable needs.\u201d Kaufman, supra, at 232, 388 S.E.2d at 209 (1990) (citing Norton v. Norton, 76 N.C. App. 213, 332 S.E.2d 724 (1985)). The general rule is that the ability of a party to pay child support is determined by that person\u2019s income at the time the award is made.\nIn the instant case, the trial judge, after hearing testimony from both plaintiff and defendant found that the reasonable needs of the child for health, education and maintenance was $770.00 per month. Of this amount, defendant was ordered to pay $700.00 per month. In reaching this conclusion, the trial judge considered evidence and made findings of plaintiff\u2019s and defendant\u2019s disposable income in order to determine the appropriate amount of child support each could afford to contribute to meet the reasonable needs of the child. Our Supreme Court has stated that using the disposable income (net income after expenses) is a way to fairly reflect the parties\u2019 relative ability to contribute proportionately to support of the child. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985).\nAt the time of the hearing, defendant had a gross income of $5,250.00 per month. The plaintiff presented evidence showing a gross income of $1,189.00 per month. Both parties presented detailed evidence regarding their living expenses, estates and debts. From this evidence, the trial court determined that plaintiff\u2019s reasonable expenses exceeded her income, but that she had reduced her expenditures so that she would have enough funds to pay for the expenses of the child. The trial court determines the credibility of the evidence and what it establishes. Once the trial court has made such findings, on appeal they are conclusive, if supported by any evidence, even if there is also evidence to the contrary. Sloop v. Friberg, 70 N.C. App. 690, 320 S.E.2d 921 (1984). Since there is evidence to support the trial court\u2019s findings, defendant\u2019s third and fourth assignments of error are overruled.\nIV\nDefendant\u2019s fifth assignment of error questions the sufficiency of the evidence to support the trial judge\u2019s award of attorney\u2019s fees to plaintiff in the amount of $5,800.00. An award of attorney\u2019s fees is permissible in a child support action pursuant to N.C. Gen. Stat. \u00a7 50-13.6 (1987), which provides in pertinent part as follows:\n[T]he Court may in its discretion order payment of reasonable attorney\u2019s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit. Before ordering payment of a fee in a support action, the Court must find as a fact that the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding. . . .\nHere, the trial judge found that the plaintiff was an interested party acting in good faith, and the defendant does not challenge these findings. Defendant does, however, advance three arguments in support*'of his contention that the award of attorney\u2019s fees to plaintiff was improper. First, defendant alleges that the evidence failed to show that the plaintiff had insufficient means to defray the expense of the action. We have already detailed the trial judge\u2019s findings regarding plaintiff\u2019s and defendant\u2019s financial status in assignments of error three and four above. After hearing the testimony on plaintiff\u2019s financial condition, the trial court found that plaintiff had insufficient means to defray the expense of the action. This finding is supported by sufficient evidence. See Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).\nIn his second argument, defendant alleges that the evidence was insufficient to find that he refused to provide adequate support \u201cunder the circumstances\u201d existing at the time of the institution of this proceeding. Defendant\u2019s statement of the law is correct, because without a finding that a party refused to provide adequate support under the circumstances existing at the time of the action, an award of attorney\u2019s fees is improper. See Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1985). However, in the instant case the trial judge found the necessary facts to support an award of attorney\u2019s fees to plaintiff. These facts show that from the time that plaintiff received custody of Junaid in November 1988, defendant was ordered by the court to pay child support. The amount of support was to be determined once the parties submitted their affidavits of financial status to the court. The trial judge set 25 November 1988 as the time to submit these affidavits to the Court. Defendant did not submit an affidavit of financial status until almost one year later, after the plaintiff had requested child support. During this time period, defendant did not pay any money for the support of the child until June 1989. Therefore, the trial judge\u2019s finding that defendant refused to provide adequate support for the child under the circumstances is well supported by the evidence.\nThird, defendant argues that the amount of attorney\u2019s fees is not supported by the evidence. We disagree. Both of plaintiff\u2019s attorneys who represented her in the custody and support hearings, submitted detailed affidavits of their experience, time, and preparation of the case. Based on this evidence, the trial judge found that an attorney\u2019s fee of $80.00 per hour for 75 and 10 hours of time respectively was a reasonable amount to award for time spent on the issue of support only. In a custody and support action, once the statutory requirements of Section 50-13.6 have been met, whether to award attorney\u2019s fees and in what amounts is within the sound discretion of the trial judge and is only reviewable based on an abuse of discretion. Atwell v. Atwell, 74 N.C. App. 231, 328 S.E.2d 47 (1985). We do not find an abuse of discretion in the instant case.\nV\nIn his sixth assignment of error, defendant argues that there was insufficient evidence to support the trial judge\u2019s modification of the existing visitation schedule. Under N.C. Gen. Stat. \u00a7 50-13.7 (1987), a party is required to demonstrate substantially changed circumstances affecting the welfare of the child in order to be granted a modification of an existing custody order. Kelly v. Kelly, 77 N.C. App. 632, 335 S.E.2d 780 (1985). The word custody under the statute also includes visitation. See Clark v. Clark, 294 N.C. 554, 243 S.E.2d 129 (1978).\nIn-this case, the plaintiff presented sufficient evidence from which the trial judge could find that the visitation schedule needed to be modified. During the initial custody hearing of November 1988, the trial judge set out a detailed visitation schedule. By the time of the support hearing, evidence was presented to show that defendant had missed approximately one-half of his scheduled visits and had failed to notify plaintiff that he would be unable to come. Plaintiff testified, and the trial judge found, that these missed visits had caused plaintiff additional expenses and inconvenience because it was necessary to arrange last minute day care on those weekends that she was scheduled to work. Defendant and plaintiff were also having difficulties agreeing as to which five-week period during the summer that the defendant was to have the child. This was ample evidence to support the trial judge\u2019s modification of the visitation schedule. Defendant\u2019s sixth assignment of error is overruled.\nVI\nIn his seventh assignment of error, defendant alleges that the trial judge should not have ordered him to provide plaintiff with information on medical insurance that he was required to maintain for the child. In the original custody order, the trial judge ordered that defendant maintain accident and health insurance on the child through defendant\u2019s employer. At the hearing of 24 October 1989, plaintiff testified that defendant had not provided her with any of the necessary insurance information. Consequently, the trial judge ordered defendant to provide this information to the plaintiff. It was within the trial judge\u2019s discretion to place this requirement in his order, and we find no abuse of that discretion.\nVII\nFinally, defendant assigns error because the trial court entered its final order without allowing defendant\u2019s attorney an opportunity to review the draft or final order prior to execution. Defendant submitted proposed findings of fact, conclusions of law, and a memorandum of law on the support issue to the trial judge for his consideration. Apparently, the trial judge considered the defendant\u2019s proposals in the making of his order. However, once the trial judge found the facts and entered his order, it was not incumbent upon him to submit his order to defendant prior to its execution. We find no merit in defendant\u2019s final assignment of error.\nFor the foregoing reasons, the decision of the trial court is,\nAffirmed.\nJudge Wells concurs.\nJudge GREENE concurs in a separate opinion.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge Greene\nconcurring.\nThe trial court in its order noted in its findings of fact that the prospective child support was to be determined in accordance with the advisory child support guidelines. In fact, the guidelines in effect at the time of the entry of the trial court\u2019s order were the presumptive child support guidelines which in this case required a child support payment of $892.00 each month unless the trial court deviated from that amount on the basis of one of eight statutory criteria. See Greer v. Greer, 101 N.C. App. 351, 353-54, 399 S.E.2d 399, 401 (1991) (setting out eight statutory criteria); see also Browne v. Browne, 101 N.C. App. 617, 622-23, 400 S.E.2d 736, 739-40 (1991) (first set of presumptive guidelines in effect from 1 October 1989 through 30 September 1990). In applying the advisory rather than the presumptive guidelines, the trial court erred. However, since the plaintiff does not raise this issue on appeal, I join with the majority in affirming the order of the trial court.", "type": "concurrence", "author": "Judge Greene" } ], "attorneys": [ "A. Larkin Kirkman for plaintiff-appellee.", "Donald H. Solomon, P.A., by Meredith J. McGill, for defendant-appellant." ], "corrections": "", "head_matter": "RAZIA SAVANI v. NOORALI K. SAVANI\nNo. 9010DC773\n(Filed 16 April 1991)\n1. Judges \u00a7 5 (NCI3d)\u2014 child support action \u2014recusal denied \u2014no error\nThe trial judge did not err by refusing to recuse himself in an action for child support, attorney\u2019s fees and modified visitation where the judge had presided over earlier hearings between the parties and had shared office space with plaintiffs counsel when in private practice. Canon 3(c)(1) of the Code of Judicial Conduct directs that judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned; the test to apply in deciding what is reasonable is whether a reasonable man, knowing all of the circumstances, would have doubts about the judge\u2019s ability to rule on the motion to recuse in an impartial manner. A careful review of the record and defendant\u2019s basis for the recusal motion shows that the circumstances do not reasonably warrant questioning the judge\u2019s impartiality.\nAm Jur 2d, Judges \u00a7\u00a7 154, 181.\n2. Divorce and Separation \u00a7 397 (NCI4th)\u2014 retroactive child support \u2014 sufficiency of findings\nThere were sufficient findings to support a trial court\u2019s award of retroactive child support where plaintiff presented an affidavit of expenses incurred following the child\u2019s placement in her custody, the court made a finding of the child\u2019s expenses based on the affidavit, and the court found the amount to be reasonable.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1035 et seq.\n3. Divorce and Separation \u00a7 394 (NCI4th)\u2014 child support\u2014 findings \u2014 sufficient\nThe trial court did not err in awarding prospective child support where there was evidence to support the court\u2019s findings that the child needed $770 per month, defendant had a gross income of $5,250 per month, plaintiff had a gross income of $1,189 per month, and plaintiff had reduced her expenses so that she would have enough funds to pay the expenses of the child. The trial court determines the credibility of the evidence and what it establishes, and the court\u2019s findings are conclusive on appeal if supported by any evidence, even if there is also evidence to the contrary.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1035 et seq.\n4. Divorce and Separation \u00a7 551 (NCI4th) \u2014 attorney fees \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a child support action by awarding attorney fees to plaintiff where the trial court\u2019s finding that plaintiff had insufficient means to defray the expense of the action was supported by sufficient evidence; the court\u2019s finding that defendant refused to provide adequate support for the child under the circumstances is well supported by the evidence; and there was no abuse of discretion in the amount of the attorney fees.\nAm Jur 2d, Divorce and Separation \u00a7 1061.\nRight to attorneys\u2019 fees in proceeding, after absolute divorce, for modification of child custody or support order. 57 ALR4th 710.\n5. Divorce and Separation \u00a7 377 (NCI4th)\u2014 visitation of child\u2014 modification of schedule\nThere was ample evidence to support the trial judge\u2019s modification of a visitation schedule where the court set out a detailed visitation schedule at the initial custody hearing; defendant missed one-half of his scheduled visits and failed to notify plaintiff that he would be unable to come; the missed visits caused plaintiff additional expense and inconvenience because it was necessary to arrange last minute day care on those weekends she was scheduled to work; and plaintiff and defendant were having difficulty agreeing on the five-week period during which defendant was to have the child in the summer.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1003 et seq.\n6. Divorce and Separation \u00a7 394 (NCI4th) \u2014 child support action\u2014 information concerning insurance \u2014required to be furnished\nThe trial judge did not abuse his discretion in a child support action by requiring defendant to provide plaintiff with information concerning accident and health insurance on the child where the original custody order had required defendant to maintain accident and health insurance through his employer.\nAm Jur 2d, Divorce and Separation \u00a7 1025.\n7. Rules of Civil Procedure \u00a7 54 (NCI3d)\u2014 final order \u2014 defendant\u2019s proposal \u2014 signed without defendant\u2019s review\nThe trial court did not err in an action for retroactive child support, attorney fees, and modified visitation by not allowing defendant to review the draft or final order prior to execution where defendant had submitted proposed findings of fact, conclusions of law, and a memorandum of law. Once the trial judge found the facts and entered his order, it was not incumbent upon him to submit his order to defendant prior to its execution.\nAm Jur 2d, Motions, Rules and Orders \u00a7\u00a7 35-39.\nJudge GREENE concurring.\nAPPEAL by defendant from judgment signed 2 February 1990, nunc pro tunc, 1 November 1989 in WAKE County District Court by Judge Jerry W. Leonard. Heard in the Court of Appeals 12 February 1991.\nA. Larkin Kirkman for plaintiff-appellee.\nDonald H. Solomon, P.A., by Meredith J. McGill, for defendant-appellant." }, "file_name": "0496-01", "first_page_order": 526, "last_page_order": 537 }