{
  "id": 8554157,
  "name": "IRENE S. FELLOWS v. DAVID A. FELLOWS",
  "name_abbreviation": "Fellows v. Fellows",
  "decision_date": "1975-11-05",
  "docket_number": "No. 7510DC515",
  "first_page": "407",
  "last_page": "409",
  "citations": [
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      "type": "official",
      "cite": "27 N.C. App. 407"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "179 S.E. 2d 870",
      "category": "reporters:state_regional",
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      "year": 1972,
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      "cite": "281 N.C. 756",
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      "reporter": "N.C.",
      "case_ids": [
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        8576611,
        8576587,
        8576623,
        8576596
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    {
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "15 N.C. App. 508",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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      "year": 1972,
      "opinion_index": 0,
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  "analysis": {
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  "last_updated": "2023-07-14T22:44:36.927205+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Vaughn and Arnold concur."
    ],
    "parties": [
      "IRENE S. FELLOWS v. DAVID A. FELLOWS"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nFirst, defendant contends the court erred in making findings of fact concerning the financial needs of his three children and in concluding as a matter of law that there had been a substantial change in circumstances between 28 August 1972 and 24 January 1975, requiring an increase in support payments. We find no merit in the contention.\nWhile the record on appeal contains certain documents which were before the court at the hearing of this cause, the order reveals that oral testimony was presented. The record does not contain the oral testimony; therefore, the court\u2019s findings of fact are presumed to be supported by competent evidence. Christie v. Powell, 15 N.C. App. 508, 190 S.E. 2d 367 (1972), cert. denied, 281 N.C. 756, 191 S.E. 2d 361 (1972) ; Cobb v. Cobb, 10 N.C. App. 739, 179 S.E. 2d 870 (1971). The findings of fact support the conclusions of law with respect to a material change in circumstances, and the findings and conclusions fully support provisions of the order increasing support payments.\nNext, defendant attempts to raise the question as to consideration and effect the court gave to defendant\u2019s new marriage and his responsibilities arising therefrom. Since we do not have before us all of the evidence the trial judge had before him, we are unable to pass upon this question.\nFinally, defendant contends the court did not make sufficient findings of fact and conclusions of law to justify awarding attorney fees. This contention is without merit.\nDefendant argues that the following provision of G.S. 50-13.6 is applicable: \u201c . . . 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;....\u201d Defendant points out that the court made no findings in compliance with the quoted provision.\nPlaintiff argues that the following provision of said statute applies: \u201cIn an action or proceeding for the custody or support, or both, of a minor child, including a motion in the cause for the modification or revocation of an existing order for custody or support, or both, the 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. ...\u201d (Emphasis added.)\nWe agree with plaintiff. The record discloses that after plaintiff filed her motion on 12 March 1974 asking for an increase in support payments, defendant filed a motion asking that custody of the children be taken from plaintiff and awarded to him. Although we do not have a record of the proceedings before the trial court, the order appealed from states that the cause was heard on plaintiff\u2019s motion for an increase in support payments and upon defendant\u2019s motion for a modification of the custody order. That being true, the court\u2019s award of attorney fees did not have to be supported by the findings which defendant contends were necessary.\nFor the reasons stated, the order appealed from is\nAffirmed.\nJudges Vaughn and Arnold concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Gulley & Green, by Jack P. Gulley, for plaintiff appellee.",
      "Vaughan S. Winborne for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "IRENE S. FELLOWS v. DAVID A. FELLOWS\nNo. 7510DC515\n(Filed 5 November 1975)\n1. Appeal and Error \u00a7 .42\u2014 oral testimony not in record \u2014 presumption\nWhere the record does not contain oral testimony before the trial court, the court\u2019s findings of fact are presumed to be supported by competent evidence.\n2. Attorney and Client \u00a7 7; Divorce and Alimony \u00a7 23\u2014 award of attorney fees \u2014 findings required\nWhere this cause was heard upon plaintiff\u2019s motion for an increase in child support payments and upon defendant\u2019s motion for a modification of the child custody order, the trial court\u2019s award of attorney fees did not have to be supported by a finding that the party ordered to furnish support (defendant) had refused to provide support which was adequate at the time of the institution of the action.\nAppeal by defendant from Barnette, Judge. Order entered 24 January 1975 in District Court, Wake County. Heard in the Court of Appeals 14 October 1975.\nDefendant is a former husband of plaintiff and appeals from an order increasing child support payments and awarding $500 fee to plaintiff\u2019s attorney.\nGulley & Green, by Jack P. Gulley, for plaintiff appellee.\nVaughan S. Winborne for defendant appellant."
  },
  "file_name": "0407-01",
  "first_page_order": 435,
  "last_page_order": 437
}