{
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  "name": "THOMAS MICHAEL KOWALICK, Plaintiff v. SUSAN GOLDENBERG KOWALICK, Defendant",
  "name_abbreviation": "Kowalick v. Kowalick",
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    "judges": [
      "Judges WALKER and TIMMONS-GOODSON concur."
    ],
    "parties": [
      "THOMAS MICHAEL KOWALICK, Plaintiff v. SUSAN GOLDENBERG KOWALICK, Defendant"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThomas Michael Kowalick (Plaintiff) appeals from the trial court\u2019s order modifying child custody, and Susan Goldenberg Kowalick (Defendant) appeals from the trial court\u2019s order denying modification of alimony and modifying child support.\nPlaintiff and Defendant were married 17 July 1982 and divorced 12 April 1993. Plaintiff was granted custody of the parties\u2019 three minor children (Ariel Rebecca Kowalick (Ariel), bom 10 February 1983; Kassia Elizabeth Kowalick, bom 10 September 1984; and Michael Thomas Kowalick, born 1 October 1987) in an order entered 24 April 1992. Defendant was ordered to pay $1,760.00 per month in child support, and this amount was increased to $2,260.00 per month in an order executed 6 December 1995. Defendant was also ordered to pay $440.00 per month in alimony.\nOn 12 June 1996, Defendant made a motion to modify custody seeking primary custody of Ariel. On 9 October 1996, an \u201cOrder Modifying Child Custody\u201d (Custody Order) was entered in which the trial court found that Ariel (then thirteen years old) was \u201cof suitable age and maturity to express a preference as to where she should reside and has consistently desired to live with her mother since the spring of 1996,\u201d and that Ariel had \u201cindicated her strong desire to live with her mother and indicated that she would be extraordinarily unhappy if the court did not recognize her request and that she would continue her efforts to try to live with her mother.\u201d The trial court concluded that Ariel\u2019s desire to live with her mother constituted a substantial change in circumstances. After \u201cconsidering the totality of the record and the evidence,\u201d including Plaintiff\u2019s concern over separating Ariel from her siblings, the trial court further concluded that \u201c[n]ot moving Ariel will be detrimental to her best interests because of her emotional attachment at this time to her mother and her need for this court to appreciate the sincerity and significance of her request.\u201d The trial court \u201cconsidered Ariel\u2019s best interest and concludes that each of the parties is a fit and proper person to have custody of Ariel. . . [but] that it is in Ariel\u2019s best interest for this court to modify the prior custody Orders . . . and to award [custody of Ariel] to [Defendant].\u201d Plaintiff appeals this Custody Order.\nAlso on 9 October 1996, the trial court entered an \u201cOrder Denying Modification of Alimony and Awarding of [sic] Modification of Child Support\u201d (Alimony/Child Support Order) pursuant to Defendant\u2019s motion filed 29 March 1996 requesting modification of her child support and alimony obligations. In the Alimony/Child Support Order, the trial court found that Defendant had sold her business since entry of the order granting alimony and child support. The trial court then found that Defendant\u2019s income had essentially remained the same, because she \u201chas the present means and ability to obtain employment which, coupled with her [actual income] would equalize her income to the salary level she previously enjoyed from her business.\u201d The trial court therefore denied Defendant\u2019s motion to modify her alimony payments. Finding that \u201ca material change in circumstance has occurred in that the Court this date has modified the custody orders previously entered in that [Ariel] is now in the care of [Defendant],\u201d the trial court ordered modification of the previous child support orders and reduced Defendant\u2019s child support obligation to $1,350.00 per month. Finally, in determining whether to aw\u00e1rd Plaintiff attorney\u2019s fees for defending Defendant\u2019s motion for modification of child support and alimony, the trial court found that Plaintiff\u2019s \u201cincome when supplemented by the alimony and child support does not equal his expenses,\u201d and \u201cPlaintiff defended the motions before this Court in good faith.\u201d The trial court therefore awarded Plaintiff $525.00 in attorney\u2019s fees. Defendant appeals the Alimony/Child Support Order, contending that the trial court erred by refusing to reduce her alimony obligation, in calculating her child support obligation, and by awarding Plaintiff attorney\u2019s fees.\nWe note preliminarily that Plaintiff appeals only from the \u201cOrder entered on the 9th day of August, 1996, and executed on the 9th day of October, 1996\u201d (i.e., the Custody Order) and does not appeal the Alimony/Child Support Order (entered on the 8th day of August, 1996, and executed on the 27th day of September, 1996). Plaintiff\u2019s assignments of error as to the Alimony/Child Support Order are therefore not properly before this Court. See N.C.R. App. P. 3(d) (\u201cThe notice of appeal... shall designate the judgment or order from which appeal is taken . . . .\u201d); Johnson & Laughlin, Inc. v. Hostetler, 101 N.C. App. 543, 546, 400 S.E.2d 80, 82 (1991) (noting that this Court lacks jurisdiction to hear an appeal which does not comply with Rule 3 of the North Carolina Rules of Appellate Procedure).\nThe issues on appeal are whether: (I) a substantial change in circumstances occurred supporting modification of the custody order; (II) changed circumstances occurred supporting modification of the alimony order; (III) Defendant\u2019s earning capacity could be considered absent a finding of bad faith; and (IV) Plaintiff is entitled to attorney\u2019s fees.\nI. Custody Modification\nAn existing child custody order may be modified only where there is a substantial change in circumstances such that the \u201cwelfare of the child will be adversely affected unless the custody provision is modified.\u201d Wiggs v. Wiggs, 128 N.C. App. 512, \u2014, 495 S.E.2d 401, 402 (1998) (quoting Ramirez-Barker v. Barker, 107 N.C. App. 71, 77, 418 S.E.2d 675, 678-79 (1992)). Whether there has been a substantial change in circumstances is a legal conclusion. Garrett v. Garrett, 121 N.C. App. 192, 197, 464 S.E.2d 716, 720 (1995). If a substantial change in circumstances is shown, the trial court must consider whether modification of the custody order would be in the best interest of the child. Ramirez-Barker, 107 N.C. App. at 77, 418 S.E.2d at 678.\nIn this case, the trial court found from the evidence presented that since the original custody order was entered, Ariel \u201chas consistently desired to live with her mother,\u201d and has \u201cindicated that she would be extraordinarily unhappy if the court did not recognize her request and that she would continue her efforts to try to live with her mother.\u201d These findings support the trial court\u2019s conclusion that a substantial change of circumstances exists which would adversely affect Ariel\u2019s welfare unless the custody order was modified. Cf. Reynolds v. Reynolds, 109 N.C. App. 110, 112, 426 S.E.2d 102, 104 (1993) (noting that the trial court may consider \u201cthe wishes of a child of suitable age and discretion\u201d in making the best interest determination). The trial court therefore did not err in modifying the Custody Order.\nII. Alimony Modification\nAlimony orders may not be modified absent a showing of changed circumstances. N.C.G.S. \u00a7 50-16.9 (1995). Only those changed circumstances which relate to the \u201cfactors used in the original determination of the amount of alimony awarded\u201d are relevant. Cunningham v. Cunningham, 345 N.C. 430, 435, 480 S.E.2d 403, 406 (1997). Even where the moving party has met her burden to show relevant changed circumstances, however, the trial court is not required to modify an alimony award, but may do so in its discretion. Robinson v. Robinson, 10 N.C. App. 463, 468, 179 S.E.2d 144, 148 (1971).\nA. Child Custody\n\u201cRelevant circumstances\u201d for consideration include \u201cthe estates, earnings, earning capacity, condition, accustomed standard of living of the parties, and other facts of the particular case.\u201d N.C.G.S. \u00a7 50-16.5(a) (Editor\u2019s Note) (1995). \u201c[0]ther facts\u201d include \u201cthe custodial parent\u2019s attendant caregiving and monetary obligations to [a] minor child.\u201d Fink v. Fink, 120 N.C. App. 412, 420, 462 S.E.2d 844, 851 (1995) (considering child custody in the dependency determination, and noting that other jurisdictions also consider child custody \u201cin determining the amount of support awarded\u201d), disc. review denied, 342 N.C. 654, 467 S.E.2d 710 (1996). The trial court must make findings of fact sufficiently specific \u201cto indicate proper consideration\u201d of relevant factors to the extent that evidence of relevant factors is presented by the parties. Self v. Self, 93 N.C. App. 323, 326, 377 S.E.2d 800, 801 (1989).\nIn this case, the trial court failed to make any findings demonstrating its consideration of the change in Ariel\u2019s custody as it relates to the alimony order. Child custody is one of the \u201cother factors\u201d which must be considered (where evidence has been presented) by the trial court in determining the amount of alimony; remand is therefore necessary to allow the trial court to do so.\nB. Dependency\nDefendant also contends that her alimony obligations should be modified because circumstances have changed in that Plaintiff is no longer a \u201cdependent spouse.\u201d Plaintiff\u2019s status as a dependent spouse, however, was \u201cpermanently adjudicated by the original order,\u201d Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982), and \u201cthe trial court, on a modification hearing, does not retry the issues tried at the original hearing,\u201d Cunningham, 345 N.C. at 435, 480 S.E.2d at 406. Although dependent spouse status is not properly reconsidered on a section 50-16.9(a) motion to modify, the trial court is required, as noted above, to consider whether there has been a change in the circumstances of the parties which relates to the \u201cfactors used in the original determination of the amount of alimony awarded.\u201d Id. We note that the trial court may, if a change in circumstances is found to exist, reduce the amount of alimony to zero, but such modification does not result in the loss of dependent spouse status.\nOn remand, the trial court should make findings showing its consideration of the section 50-16.5 factors on which the parties have presented competent evidence. Again, we note that section 50-16.5, although repealed, remains applicable to this case, because the section 50-16.5 factors were used in the original determination of the amount of alimony awarded.\nC. Earning Capacity\nFinally, Defendant contends that the trial court improperly considered her earning capacity, rather than her actual income, in determining her alimony obligation. Alimony is ordinarily determined by a party\u2019s actual income, from all sources, at the time of the order. See Wachacha v. Wachacha, 38 N.C. App. 504, 507-08, 248 S.E.2d 375, 377-78 (1978). To base an alimony obligation on earning capacity rather than actual income, the trial court must first find that the party has depressed her income in bad faith. Id.\nIn this case, the trial court found that Defendant had sold her business since entry of the order granting alimony. The trial court then found that Defendant\u2019s income had essentially remained the same, because she \u201chas the present means and ability to obtain employment which, coupled with her [actual income] would equalize her income to the salary level she previously enjoyed from her business.\u201d The trial court failed, however, to make any findings as to whether Defendant had depressed her income in bad faith. Absent such findings, the trial court could not base its determination of Defendant\u2019s alimony obligation on Defendant\u2019s earning capacity. Accordingly, we must remand for the trial court to make the requisite findings and to reconsider Defendant\u2019s alimony obligation.\nIII. Child Support Modification\nChild support orders may not be modified absent a showing of changed circumstances. N.C.G.S. \u00a7 50-13.7(a) (1995).\nIn this case, the trial court properly found that the change in Ariel\u2019s custody constituted a changed circumstance supporting modification of Defendant\u2019s child support obligation. Having determined that a changed circumstance existed, the trial court proceeded to modify the amount of child support.\nIn modifying the amount of a child support obligation, the trial court must generally consider a party\u2019s actual income. Ellis v. Ellis, 126 N.C. App. 362, 364, 485 S.E.2d 82, 83 (1997). The trial court may only consider a party\u2019s earning capacity if it finds that the party was \u201cacting in bad faith by deliberately depressing her income or otherwise disregarding the obligation to pay child support.\u201d Shroader v. Shroader, 120 N.C. App. 790, 794, 463 S.E.2d 790, 792 (1995).\nIn this case, the trial court erred in considering Defendant\u2019s earning capacity without finding that Defendant had deliberately depressed her income in bad faith or had otherwise disregarded her child support obligation. We therefore remand for entry of findings on this issue, and for recalculation of the amount of Defendant\u2019s child support obligation if necessary.\nIV. Attorney\u2019s Fees\nSince we remand for additional findings and entry of new alimony and child support orders, it remains to be seen whether Plaintiff will successfully resist Defendant\u2019s action for modification. A party seeking attorney\u2019s fees must show that the child support and/or alimony modification action was resolved in his favor. See Walker v. Tucker, 69 N.C. App. 607, 613, 317 S.E.2d 923, 928 (1984) (quoting Daniels v. Hatcher, 46 N.C. App. 481, 485, 265 S.E.2d 429, 432 (1980)) (child support); Barham, 127 N.C. App. at 30, 487 S.E.2d at 780 (alimony). We therefore reverse and remand the trial court\u2019s award of attorney\u2019s fees to Plaintiff. On remand, the trial court may again consider whether either party is entitled to attorney\u2019s fees.\nCustody Order \u2014 Affirmed.\nAlimony/Child Support Order \u2014 Reversed and remanded.\nAttorney\u2019s Fees \u2014 Reversed and remanded.\nJudges WALKER and TIMMONS-GOODSON concur.\n. We note that section 50-16.5 has been repealed and section 50-16.3A now addresses alimony generally; however, section 50-16.5 still applies to future motions in the cause seeking to modify orders or judgments in effect on 1 October 1995.1995 Sess. Laws ch. 319, \u00a7 12. Since the alimony and child support orders Defendant seeks to modify were entered prior to 1 October 1995, section 50-16.5 remains applicable to this case. See Barham v. Barham, 127 N.C. App. 20, 26, 487 S.E.2d 774, 778 (1997), aff\u2019d per curiam, 347 N.C. 570, 494 S.E.2d 763 (1998).",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Thomas Michael Kowalick, for plaintiff-appellant, pro se.",
      "Staton, Perkinson, Doster, Post, Silverman, Adcock & Boone, by Jonathan Silverman and Michelle A. Cummins, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "THOMAS MICHAEL KOWALICK, Plaintiff v. SUSAN GOLDENBERG KOWALICK, Defendant\nNo. COA97-704\n(Filed 16 June 1998)\n1. Divorce and Separation \u00a7 351 (NCI4th)\u2014 child custody\u2014 modification \u2014 child\u2019s wishes \u2014 modification not error\nThe trial court did not err by modifying a child custody order where the court found from the evidence that the child had consistently desired to live with her mother since the original custody order was entered, had indicated that she would be extraordinarily unhappy if the court did not recognize her request, and would continue her efforts to try to live with her mother. These findings support the conclusion that a substantial change of circumstances existed which would adversely affect the child\u2019s welfare unless the custody order was modified.\n2. Divorce and Separation \u00a7 291 (NCI4th)\u2014 alimony \u2014 change of child custody \u2014 changed circumstances\nA trial court order which changed child custody but did not reduce defendant\u2019s alimony obligation was remanded for findings demonstrating consideration of the change in custody as it relates to the alimony order. Child custody is one of the factors which must be considered by the trial court in determining the amount of alimony.\n3. Divorce and Separation \u00a7 291 (NCI4th)\u2014 alimony\u2014 dependency status \u2014 change of circumstances\nOn remand of a child custody and alimony order, the trial court was required to make findings showing its consideration of the N.C.G.S. \u00a7 50-16.5 factors on which the parties presented competent evidence. Although dependent spouse status is not properly reconsidered on a section 50-16.9(a) motion to modify, the trial court is required to consider whether there has been a change in the circumstances of the parties which relates to the factors used in the original determination. N.C.G.S. \u00a7 50-16.5, although repealed, remains applicable because those factors were used in the original determination of the amount of alimony.\n4. Divorce and Separation \u00a7 272 (NCI4th)\u2014 alimony \u2014 modification \u2014 earning capacity rather than income\nA trial court order which did not reduce plaintiff\u2019s alimony obligation was remanded for findings where the court found that defendant had sold her business but had the present means and ability to obtain employment which would equalize her income to the level previously enjoyed, but failed to make findings as to whether defendant had depressed her income in bad faith.\n5. Divorce and Separation \u00a7 401 (NCI4th)\u2014 child support modification \u2014 changed income \u2014 no findings of bad faith\nA trial court order modifying child support was remanded where the court erred in considering defendant\u2019s earning capacity without finding that defendant had deliberately depressed her income in bad faith or had otherwise disregarded her child support obligation.\n6. Divorce and Separation \u00a7 549 (NCI4th)\u2014 attorney fees\u2014 remand of underlying award \u2014 attorney fee award also remanded\nAn award of attorney fees to plaintiff in an action for modification of child support and alimony was remanded where the underlying order modifying support and alimony was remanded. A party seeking attorney fees must show that the child support and/or alimony modification was resolved in his favor and it remains to be seen whether plaintiff will successfully resist defendant\u2019s action for modification.\nAppeal by plaintiff from order entered 9 August 1996 and filed 9 October 1996, and cross-appeal by defendant from order entered 8 August 1996 and filed 9 October 1996 by Judge Ronald W. Burris in Moore County District Court. Heard in the Court of Appeals 24 February 1998.\nThomas Michael Kowalick, for plaintiff-appellant, pro se.\nStaton, Perkinson, Doster, Post, Silverman, Adcock & Boone, by Jonathan Silverman and Michelle A. Cummins, for defendant-appellant."
  },
  "file_name": "0781-01",
  "first_page_order": 821,
  "last_page_order": 828
}