{ "id": 11218982, "name": "TRACEY KYLES BROOKER, Plaintiff v. CHRISTOPHER CHARLES BROOKER Defendant", "name_abbreviation": "Brooker v. Defendant", "decision_date": "1999-05-18", "docket_number": "No. COA98-867", "first_page": "285", "last_page": "291", "citations": [ { "type": "official", "cite": "133 N.C. App. 285" } ], "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": "339 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522521 ], "year": 1986, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0627-01" ] }, { "cite": "332 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "728", "parenthetical": "\"[E]vidence of, and findings of fact on, the parties' income, estates, and present reasonable expenses are necessary to determine their relative abilities to pay.\"" }, { "page": "727" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526939 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "218", "parenthetical": "\"[E]vidence of, and findings of fact on, the parties' income, estates, and present reasonable expenses are necessary to determine their relative abilities to pay.\"" }, { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0213-01" ] }, { "cite": "400 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "740", "parenthetical": "quoting \u00a7 50-13.4(c)" }, { "page": "740" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528011 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "624", "parenthetical": "quoting \u00a7 50-13.4(c)" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0617-01" ] }, { "cite": "458 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790083, 790182, 790069, 790070, 790172 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0359-05", "/nc/340/0359-02", "/nc/340/0359-01", "/nc/340/0359-03", "/nc/340/0359-04" ] }, { "cite": "453 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "542" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916611 ], "year": 1995, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0082-01" ] }, { "cite": "286 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "582", "parenthetical": "\"When findings which are supported by competent evidence are sufficient to support a judgment, the judgment will not be disturbed on the ground that another finding, which does not affect the conclusion, [is erroneous].\"" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527774 ], "year": 1982, "pin_cites": [ { "page": "654", "parenthetical": "\"When findings which are supported by competent evidence are sufficient to support a judgment, the judgment will not be disturbed on the ground that another finding, which does not affect the conclusion, [is erroneous].\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0651-01" ] }, { "cite": "411 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 798", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524379 ], "year": 1991, "pin_cites": [ { "page": "800" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0798-01" ] }, { "cite": "271 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "926", "parenthetical": "changed circumstances determination is a conclusion of law in alimony cases" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522220 ], "year": 1980, "pin_cites": [ { "page": "470", "parenthetical": "changed circumstances determination is a conclusion of law in alimony cases" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0463-01" ] }, { "cite": "501 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659910 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0616-01" ] }, { "cite": "495 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "403" }, { "page": "404" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655711 ], "weight": 2, "pin_cites": [ { "page": "514" }, { "page": "515-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0512-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "675", "parenthetical": "noting that any determination requiring the exercise of judgment or the application of legal principles is a conclusion of law" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "510", "parenthetical": "noting that any determination requiring the exercise of judgment or the application of legal principles is a conclusion of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "343 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521907 ], "year": 1986, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0147-01" ] }, { "cite": "177 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553620 ], "year": 1970, "pin_cites": [ { "page": "682-83" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0681-01" ] } ], "analysis": { "cardinality": 661, "char_count": 16818, "ocr_confidence": 0.738, "pagerank": { "raw": 1.3362902638218148e-07, "percentile": 0.6301865475554752 }, "sha256": "73da9a57f1fd23502db82a79a79c2c5c140729ed76545012cb320a9bd8aa92d2", "simhash": "1:929a45eed4ce26d6", "word_count": 2692 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and McGEE concur." ], "parties": [ "TRACEY KYLES BROOKER, Plaintiff v. CHRISTOPHER CHARLES BROOKER Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nChristopher Charles Brooker (Defendant) appeals from the trial court\u2019s order increasing his child support obligation from $260.00 to $446.00 per month.\nDefendant and Tracey Kyles Brooker (Plaintiff) were married on 29 July 1989 and divorced on 25 March 1996. On 5 November 1993, one minor child was born of the marriage. The Iredell County District Court entered a consent judgment on 13 December 1995 in which Defendant agreed to pay child support in the amount of $260.00 per month.\nOn or about 8 April 1997, Plaintiff filed a motion, in Iredell County District Court, for an increase in Defendant\u2019s child support obligation. Defendant subsequently filed notice that \u201che intends to request a continued deviation from the child-support guidelines, and it will therefore be necessary to inquire as to the parties\u2019 reasonable living expenses as well as to the child\u2019s reasonable needs.\u201d In addition, Defendant filed a motion for change of venue on the grounds that \u201cplaintiff is now a resident of Wilkes County, while defendant is a resident of Forsyth County,\u201d noting that \u201cneither party nor the minor child [currently] resides in Iredell County.\u201d\nBecause tapes of the hearings on the parties\u2019 motions were deemed unuseable, the parties prepared a narrative statement of the testimony presented at the hearings for the record on appeal. See N.C. R. App. P. 9(c)(1). The record, including this narrative statement, reveals that Plaintiff and the minor child lived with Plaintiff\u2019s grandmother when the consent judgment setting child support was entered. At that time, Plaintiff earned approximately $1,190.00 (net) per month. From this amount, Plaintiff paid her grandmother $100.00 per month for rent and paid \u201cabout $35.00\u201d per month in \u201cgrocery and school\u201d expenses for the minor child. In addition, her grandmother provided daycare for the minor child. Since that time, however, Plaintiff\u2019s net monthly income has increased to $1,415.00 per month; in addition, she receives coaching supplements in the amount of $700.00 per semester. Plaintiff and the minor child have moved out of her grandmother\u2019s home, and Plaintiff\u2019s rent is now $270.00 per month. Plaintiff\u2019s grocery bills, at the time of the hearing, were $90.00 per month, and the minor child\u2019s daycare expenses were $65.00 per month. In addition, \u201cthe minor child is now becoming involved in recreation department activities that costs [sic] between $35.00 and $50.00 per month.\u201d\nThe record reveals that Defendant\u2019s income at the time of the consent judgment was \u201csubstantial,\u201d but does not reveal the actual amount. Defendant testified that his current gross income is $28,296.00, and that he \u201cnow has a roommate with whom he share[s] expenses.\u201d Defendant calculated his total monthly expenses (including the existing $250.00 child support obligation) at $1,915.00.\nAfter hearing all the evidence presented by the parties, the Iredell County District Court made the following pertinent findings of fact:\n4. That on or about the 13th day of December, 1995, the parties entered into a Consent Judgment filed in the District Court Division, Iredell County, North Carolina; and that said Consent Judgment established jurisdiction before this court and retained jurisdiction over the parties and subject matter herein ....\n5. That since entry of the prior Order, the plaintiff has moved to Wilkes County, and the defendant has moved to Forsyth County; and that Iredell County is the most convenient forum for witnesses and the parties and the minor child.\n6. That there has been a substantial change of circumstances with respect to the needs of the minor child and the needs of the plaintiff to support the minor child since the aforesaid Consent Judgment was entered; that over two years have passed during which time the defendant and the plaintiff have received salary increases so that the defendant\u2019s gross salary is $28,296.00 and the plaintiff\u2019s gross salary, including supplements, is $29,412.00; and that the defendant\u2019s financial situation is now more stable than the date of the entry of the Consent Judgment as based upon the testimony and affidavits of the parties.\n8. That the minor child is now 4 years old and has advanced in age so that her needs have greatly increased as based upon testimony of the plaintiff and the plaintiff\u2019s affidavit.\n9. . . . [T]hat there is a deviation [between Defendant\u2019s current child support payment and the] existing North Carolina Child Support Guidelines [(Guidelines)] of 78 percent.\nThe trial court made no specific findings as to the actual expenses of Plaintiff and/or the parties\u2019 minor child. The trial court did, however, make a detailed finding as to Defendant\u2019s expenses and found some of Defendant\u2019s claimed expenses to be either \u201cunnecessary,\u201d \u201cexorbi-taut,\u201d or unverified. The trial court was \u201cnot persuaded by the evidence of the defendant that the defendant is unable to meet the calculated child support obligation in the amount [of] $446.00 per month.\u201d\nBased on its findings, the trial court concluded that \u201cthere exist a substantial changes [sic] in circumstances warranting a modification of the prior Consent Judgment of this Court.\u201d The trial court further concluded that Defendant \u201chas failed to overcome the presumption of the [Guidelines] and is not entitled to a deviation therefrom.\u201d Accordingly, the trial court entered an order on 20 February 1998 denying Defendant\u2019s motion for a change of venue and increasing Defendant\u2019s child support obligation to $446.00 per month pursuant to the Guidelines.\nThe issues are whether: (I) the trial court abused its discretion in denying Defendant\u2019s motion for a change of venue; (II) the trial court\u2019s findings of fact support the conclusion of law that changed circumstances exist; and (III) the trial court made sufficient findings of fact to deny Defendant\u2019s request for deviation from the Guidelines.\nI\nWhere custody and support have been determined by the trial court and a party seeks modification of the custody and support order, \u201cthe court first obtaining jurisdiction retains jurisdiction to the exclusion of all other courts and is the only proper court to bring an action for the modification of an order establishing custody and support.\u201d Tate v. Tate, 9 N.C. App. 681, 682-83, 177 S.E.2d 455, 457 (1970). That court may, in its discretion, enter an order transferring venue to another court for the convenience of the parties, the convenience of the witnesses, and/or in the best interest of the child. Broyhill v. Broyhill, 81 N.C. App. 147, 149, 343 S.E.2d 605, 606 (1986).\nIn this case, the original child support order was filed in Iredell County District Court. Iredell County District Court is therefore the proper forum for motions to modify that order. In his motion to transfer, Defendant contended he had relocated to Forsyth County and Plaintiff had relocated to Wilkes County. Iredell County is, essentially, located between Forsyth County and Wilkes County and is in relatively close proximity to both. Accordingly, the trial court did not abuse its discretion by denying Defendant\u2019s motion to transfer venue to Forsyth County based on its determination that the Iredell County District Court remained the most convenient forum.\nII\nAn existing child support order may not be modified absent a showing of changed circumstances. N.C.G.S. \u00a7 50-13.7(a) (1995). The determination of whether changed circumstances exist is a conclusion of law. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (noting that any determination requiring the exercise of judgment or the application of legal principles is a conclusion of law); cf. Wiggs v. Wiggs, 128 N.C. App. 512, 514, 495 S.E.2d 401, 403 (changed circumstances determination is a conclusion of law in custody cases), disapproved of on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998); Britt v. Britt, 49 N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (changed circumstances determination is a conclusion of law in alimony cases). Where the moving party is relying on either an increase or decrease in the child\u2019s needs to establish changed circumstances, she has the burden of \u201cshowing the child\u2019s expenses both at the time the original support order was entered and at the present time.\u201d Davis v. Risley, 104 N.C. App. 798, 800, 411 S.E.2d 171, 173 (1991). There is no need for the trial court to make specific, or evidentiary, findings of fact reciting the child\u2019s past and present expenses. The trial court is required, however, to make ultimate findings necessary to resolve material disputes in the evidence. The trial court is likewise required to make an ultimate finding as to whether the needs of the child have increased or decreased since entry of the prior order to support a changed circumstances conclusion on that ground.\nIn this case, the trial court found that \u201cthe needs of the minor child and the needs of the plaintiff to support the minor child [had increased] since the aforesaid Consent Judgment was entered,\u201d and that the minor child\u2019s needs \u201chave greatly increased.\u201d These ultimate findings support the conclusion that changed circumstances exist, and are themselves amply supported by undisputed evidence revealing that daycare expenses for the minor child have increased by $65.00 per month, recreation expenses for the minor child have increased by $35.00 to $50.00 per month, and the amount Plaintiff must expend for rent and groceries has increased from $135.00 to $360.00 per month. Accordingly, the trial court properly concluded that a substantial change in circumstances exists justifying modification of the child support order.\nWe note that the trial court\u2019s finding that Defendant\u2019s initial child support obligation deviated from the current Guidelines by 78 percent is irrelevant and cannot support the conclusion that changed circumstances existed, because less than three years had elapsed since entry of the consent judgment setting Defendant\u2019s child support obligation. See Child Support Guidelines, 1999 Ann. R. N.C. 34 (\u201cIf the order is less than three years old, this presumption [of a substantial change in circumstances based on a 15 percent deviation from the Guidelines] does not apply.\u201d); Wiggs, 128 N.C. App. at 515-16, 495 S.E.2d at 404. In cases where such a finding was the trial court\u2019s only finding supporting a conclusion of changed circumstances, we would be required to reverse. In this case, however, the trial court\u2019s finding that the child\u2019s needs have \u201cgreatly increased\u201d amply supports the conclusion that changed circumstances exist. See Self v. Self, 55 N.C. App. 651, 654, 286 S.E.2d 579, 582 (1982) (\u201cWhen findings which are supported by competent evidence are sufficient to support a judgment, the judgment will not be disturbed on the ground that another finding, which does not affect the conclusion, [is erroneous].\u201d).\nIll\nOnce changed circumstances have been shown, the trial court should \u201ccompute the appropriate amount of child support\u201d pursuant to the Guidelines then in effect. Hammill v. Cusack, 118 N.C. App. 82, 86, 453 S.E.2d 539, 542, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). The child support amounts provided in the Guidelines are presumptive, N.C.G.S. \u00a7 50-13.4(cl) (Supp. 1998); Child Support Guidelines, 1999 Ann. R. N.C. 32; therefore, the trial court is generally not \u201crequired to take any evidence, make any findings of fact, or enter any conclusions of law \u2018relating to the reasonable needs of the child for support and the relative ability of each parent to [pay or] provide support\u2019 \u201d in setting the support amount, Browne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 740 (1991) (quoting \u00a7 50-13.4(c)). \u201c[U]pon the request of any party [for a deviation from the Guidelines, however,] the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support.\u201d N.C.G.S. \u00a7 50-13.4(c); Browne, 101 N.C. App. at 623, 400 S.E.2d at 740. If the trial court \u201cfinds by the greater weight of the evidence that the application of the [Guidelines would not meet or would exceed the reasonable needs of the child ... or would be otherwise unjust or inappropriate,\u201d then it may deviate from the Guidelines. N.C.G.S. \u00a7 50-13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 32 (\u201cThe Court may deviate from the Guidelines in cases where application would be inequitable to one of the parties or to the child(ren).\u201d). This deviation must likewise be supported by \u201cfindings of fact as to the criteria that justify varying from the [Guidelines and the basis for the amount ordered.\u201d N.C.G.S. \u00a7 50-13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 32 (\u201cIf the Court orders an amount other than the amount determined by application of the Guidelines, the Court must make written findings of fact that justify the deviation, that state the amount of the award which would have resulted from application of the Guidelines, and that justify the amount of support awarded by the Court.\u201d).\nIn this case, Defendant requested a variation from the Guidelines. Although the trial court made findings as to the reasonableness of some of Defendant\u2019s claimed expenses, it did not make findings as to the reasonable needs of the parties\u2019 minor child or of the parties\u2019 relative ability to provide support. See Norton v. Norton, 76 N.C. App. 213, 218, 332 S.E.2d 724, 728 (1986) (\u201c[E]vidence of, and findings of fact on, the parties\u2019 income, estates, and present reasonable expenses are necessary to determine their relative abilities to pay.\u201d). Such findings are required by section 50-13.4(c) upon a party\u2019s request for a deviation from the Guidelines. Accordingly, we must remand the trial court\u2019s modification order for findings concerning the reasonable needs of the child, the relative ability of the parents to support the child, and a determination of whether a variation from the Guidelines is appropriate on these grounds.\nAffirmed in part, reversed in part, and remanded.\nJudges MARTIN and McGEE concur.\n. We note that cases decided prior to the imposition of the presumptive Guidelines required the trial court to \u201cmake findings of specific fact on the actual past expenditures for the minor child, the present reasonable expenses of the minor child, and the parlies\u2019 relative abilities to pay\u201d prior to modifying an existing child support order. See, e.g., Mullen v. Mullen, 79 N.C. App. 627, 630, 339 S.E.2d 838, 840 (1986); Norton v. Norton, 76 N.C. App. 213, 216, 332 S.E.2d 724, 727 (1985). This requirement must be read in light of the then-existing statutory structure allowing trial courts to set child support amounts in their discretion based on the particular facts of each case. Specific findings were not necessary, even then, to support the trial court\u2019s changed circumstances conclusion; rather, specific findings were required for effective appellate review of the discretionary child support amount.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Homesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley, for plaintiff-appellee.", "Morrow Alexander Task Long & Kurtz, by C.R. \u201cSkip\u201d Long, Jr. for defendant-appellant." ], "corrections": "", "head_matter": "TRACEY KYLES BROOKER, Plaintiff v. CHRISTOPHER CHARLES BROOKER Defendant\nNo. COA98-867\n(Filed 18 May 1999)\n1. Child Support, Custody, and Visitation\u2014 child support\u2014 venue \u2014 motion for change denied \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a child support modification proceeding by denying a motion for change of venue where the original child support order was filed in Iredell County and defendant contended in his motion to transfer that he had relocated to Forsyth County and that plaintiff had relocated to Wilkes County. Iredell is essentially located between Forsyth County and Wilkes County and is in relatively close proximity to both.\n2. Child Support, Custody, and Visitation\u2014 child support\u2014 modification \u2014 changed circumstances \u2014 findings\nThe trial court properly concluded that a substantial change in circumstances existed justifying modification of a child support order where the court\u2019s findings that the needs of the minor child and the needs of the plaintiff to support the child had increased were amply supported by undisputed evidence.\n3. Child Support, Custody, and Visitation\u2014 child support\u2014 modification \u2014 deviation from Guidelines\nA trial court order modifying child support was remanded for findings concerning the reasonable needs of the child, the relative ability of the parents to support the child, and a determination of whether a variation from the Guidelines is appropriate on those grounds.\nAppeal by defendant from order filed 20 February 1998 by Judge Jimmy L. Myers, in Iredell County District Court. Heard in the Court of Appeals 27 April 1999.\nHomesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley, for plaintiff-appellee.\nMorrow Alexander Task Long & Kurtz, by C.R. \u201cSkip\u201d Long, Jr. for defendant-appellant." }, "file_name": "0285-01", "first_page_order": 315, "last_page_order": 321 }