{ "id": 8554748, "name": "ARNOLD WACHACHA v. ANNA MAY ROBINSON WACHACHA", "name_abbreviation": "Wachacha v. Wachacha", "decision_date": "1978-11-07", "docket_number": "No. 7830DC27", "first_page": "504", "last_page": "509", "citations": [ { "type": "official", "cite": "38 N.C. App. 504" } ], "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": "114 S.E. 2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "252 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622499 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0408-01" ] }, { "cite": "179 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554365 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0463-01" ] }, { "cite": "214 S.E. 2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0 }, { "cite": "287 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561262 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0163-01" ] }, { "cite": "40 S.E. 2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "226 N.C. 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625343 ], "year": 1946, "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0750-01" ] }, { "cite": "170 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548309 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0401-01" ] }, { "cite": "178 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567056 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0623-01" ] } ], "analysis": { "cardinality": 535, "char_count": 11276, "ocr_confidence": 0.809, "pagerank": { "raw": 3.0890716181578246e-07, "percentile": 0.8585174270777949 }, "sha256": "affb850b1e392b31d7bc6c6e0b5e749e49b5cb42a2c6338e0ddeb33bc6c2d891", "simhash": "1:c606ce5fbe0b36cb", "word_count": 1818 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Mitchell concur." ], "parties": [ "ARNOLD WACHACHA v. ANNA MAY ROBINSON WACHACHA" ], "opinions": [ { "text": "BROCK, Chief Judge.\nThe separation agreement executed by the parties contained the following provision: \u201cIf and when it is no longer necessary-for the party of the first part [the husband] to pay for the support of the party of the second part, [the wife] it is understood and agreed between the parties hereto that he, the said party of the first part will furnish adequate support for his minor child sufficient to retain the standard of living to which he had been accustomed. . . .\u201d Plaintiff-husband challenges the conclusion in the court\u2019s order that this phrase \u201cwas intended by the parties and does refer to the possibility that the defendant herein might in the future remarry or die.\u201d\nAlthough the provision in question was included in the separation agreement executed on 6 April 1975, it was incorporated by reference into the consent judgment of 8 October 1976 and made an integral part thereof. A consent judgment is a contract between the parties th\u00e9reto and should be construed as any other contract. Mullen v. Sawyer, 277 N.C. 623, 178 S.E. 2d 425 (1971). It is a cardinal rule of contract interpretation that when there is no clear apparent meaning to be discerned from a contract provision, a court, in seeking to ascertain the intent of the parties, must focus on all the surrounding circumstances at the time the contract was made. 4 Williston on Contracts, \u00a7 618, p. 716 (3d ed. 1961). The court, in this instance, properly concluded that the provision in question was ambiguous in that the parties\u2019 agreement gives no guidance as to what is meant by the phrase, \u201cwhen it is no longer necessary.\u201d After examining the circumstances surrounding the entry of the consent judgment, particularly the fact that defendant-wife was employed at a salary of $11,200.00 per year at that time, the court concluded that the intent of the parties was to provide for continued child support payments in the event of defendant-wife\u2019s death or remarriage. The court\u2019s interpretation is not unreasonable in light of the evidence presented. We thus find no merit in plaintiff-husband\u2019s first assignment of error.\nModification of support and alimony provisions contained in a judgment may only be obtained as provided for in G.S. 50-13.7 and G.S. 50-16.9 upon, \u201ca showing of changed circumstances by either party or anyone interested.\u201d These statutes have been construed to require a showing of a substantial change in circumstances. See Rothman v. Rothman, 6 N.C. App. 401, 170 S.E. 2d 140 (1969). Plaintiff-husband assigns error to the court\u2019s conclusion in this instance that he failed to show a substantial change in either his own or the circumstances of defendant-wife. He also assigns error to the court\u2019s finding on the related issue that any change in his circumstances was voluntarily effected by him in disregard of his marital and parental obligations.\nThe trial court\u2019s conclusion that the change in plaintiff-husband\u2019s circumstances was voluntarily effected by him in disregard of his marital and parental obligations is denominated in the court\u2019s order as a finding of fact. What is designated by the trial court as a finding of fact, however, will be treated on review as a conclusion of law if essentially of that character. 5 C.J.S., Appeal and Error, \u00a7 1454, p. 578. \u201cThe label of fact put upon a conclusion of law will not defeat appellate review.\u201d Charlotte v. Heath, 226 N.C. 750, 755, 40 S.E. 2d 600, 604 (1946). The determination that a husband\u2019s change in circumstances has been voluntarily effected by him in disregard of his marital and parental obligations justifying imposition of the earnings capacity rule is a conclusion of law based on the factual findings in the particular case, and our review of the court\u2019s order will proceed on that basis.\nWhen a court concludes as a matter of law on the basis of the evidence presented that a husband has failed to exercise his reasonable capacity to earn because of a disregard of his marital and parental obligations to provide reasonable support for his wife and minor child, the court may base an alimony and/or child support award on the individual\u2019s ability to earn as distinguished from his actual income. Bowes v. Bowes, 287 N.C. 163, 214 S.E. 2d 40 (1975). Similarly, a court may refuse to modify a support and/or alimony award on the same grounds. Robinson v. Robinson, 10 N.C. App. 463, 179 S.E. 2d 144 (1971). In Bowes, Justice Copeland reviewed the cases in which the earnings capacity rule had been applied and concluded that the basic issue to be determined is whether, \u201cthe husband, by reducing his income, [is] primarily motivated by a desire to avoid his reasonable support obligations?\u201d Id. at 173, 214 S.E. 2d at 46. In Sguros v. Sguros, 252 N.C. 408, 114 S.E. 2d 79 (1960), the Court held that under the circumstances disclosed so long as the husband acted in \u201cgood faith\u201d in accepting employment that resulted in the reduction of his income, application of the earnings capacity rule was improper. In Bowes, Justice Copeland went on to conclude that before applying the earnings capacity rule, \u201cthe finder of the fact must have before it sufficient evidence of the proscribed intent.\u201d Id. at 173, 214 S.E. 2d at 46. (Emphasis added.)\nThe evidence in the present case showed the following: Plaintiff-husband, subsequent to the date on which the consent judgment was entered, voluntarily gave up'his $15,000 per year job as director of recreation on the Cherokee reservation; He did so with the intention of returning to college to complete his undergraduate degree in recreation with the expectation that by obtaining a degree he would become eligible for employment at a higher salary as a recreation director in a different locale. Plaintiff-husband did return to college and arranged to meet his support and alimony obligations from his income under the GI bill. While he was a student at Western Carolina University, plaintiff-husband failed two of his courses. Concerned about mounting financial obligations, plaintiff-husband decided not to return to school and instead took a job with a construction company at an annual salary well below that which he enjoyed while employed as recreation director. While still enrolled as a student, plaintiff-husband declined an offer of employment with another construction company because of transportation difficulties. After the separation of the parties, plaintiff-husband purchased a new car, and subsequent to the entry of the consent judgment, he purchased a mobile home and a motorcycle.\nWe do not think the evidence summarized above is sufficient to support the court\u2019s conclusion that plaintiff-husband\u2019s change of circumstances was voluntarily effected by him in disregard of his marital and parental support obligations. As the cases discussed above correctly observe, the court\u2019s conclusion underlying imposition of the earnings capacity rule must be based on evidence that tends to show the husband\u2019s actions resulting in the reduction of his income were not taken in \u201cgood faith.\u201d Evidence of intent such as \u201cbad faith\u201d generally can be proven, if at all, only by circumstantial evidence. See Stansbury, N.C. Evidence, \u00a7 83, p. 254 (Brandis Rev. 1973). The circumstantial evidence presented in this instance, however, does not offer support for the court\u2019s conclusion. We therefore vacate the order appealed from and remand this case for rehearing. Having vacated the order it is not necessary to consider appellant\u2019s assignment of error to the court\u2019s finding that no change in defendant-wife\u2019s circumstances had been shown.\nVacated and remanded.\nJudges Hedrick and Mitchell concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Holt, Haire & Bridgers, by Ben Oshel Bridgers for plaintiff.", "McKeever, Edwards, Davis & Hays, by Fred H Moody, Jr., for defendant." ], "corrections": "", "head_matter": "ARNOLD WACHACHA v. ANNA MAY ROBINSON WACHACHA\nNo. 7830DC27\n(Filed 7 November 1978)\n1. Divorce and Alimony \u00a7 24.3\u2014 child support \u2014construction of order\nThe trial court did not err in concluding that a provision of a separation agreement and consent judgment requiring the husband to continue to furnish adequate support for his minor child \u201cwhen it is no longer necessary\u201d for the husband to furnish support to the wife was intended by the parties to provide for continued child support payments in the event of the wife\u2019s death or remarriage.\n2. Divorce and Alimony \u00a7 19.4\u2014 motion to reduce alimony and child support-change of circumstances \u2014 earning capacity \u2014 no bad faith effort\nThe evidence was insufficient to support the court's denial of plaintiff husband\u2019s motion for a reduction in alimony and child support payments required by a consent judgment on the ground that plaintiff\u2019s change in circumstances was voluntarily effected by him in disregard of his marital and parental support obligations where it tended to show that plaintiff gave up his $15,000 per year job as recreation director of the Cherokee reservation in order to return to college to complete his undergraduate degree in recreation, with the expectation of employment at a higher salary in a different locale after he obtained his degree; plaintiff returned to college and arranged to meet his alimony and child support obligations from his income under the GI bill; plaintiff was concerned about mounting financial obligations, decided not to return to school, and took a job with a construction company at a salary well below that which he received while employed as a recreation director; after separation of the parties, plaintiff purchased a new car; and after entry of the consent judgment, plaintiff purchased a mobile home and a motorcycle.\nAPPEAL by plaintiff from order of Leatherwood, Judge. Order entered 5 August 1977 in Superior Court, GRAHAM County. Heard in the Court of Appeals 16 October 1978.\nPlaintiff-husband brought this divorce action in 1976. A consent judgment was entered on 8 October 1976 decreeing the bonds of matrimony between the parties to be dissolved. Custody of the parties\u2019 minor child was awarded to defendant-wife. A separation agreement, executed by the parties on 6 April 1975, was incorporated by reference and made a part of the consent judgment. The separation agreement provided for alimony and child support payments to be made by plaintiff-husband in the amount of four hundred dollars per month.\nOn 17 February 1977, plaintiff-husband filed this motion in the cause, seeking a modification of the consent judgment. Plaintiff-husband\u2019s motion sought a reduction in the alimony and support payments from four hundred to two hundred dollars per month and modification of his visitation rights with respect to the parties\u2019 minor child. The motion was heard before Judge Leather-wood on 4 August 1977. After hearing the testimony of both plaintiff-husband and defendant-wife and considering the evidence presented, the court entered an order modifying the visitation provisions of the consent judgment but denying modification of the alimony and support provisions. The court\u2019s order found as a fact that plaintiff-husband had failed to show a material change of circumstances justifying his motion for reduction in the alimony and support provisions inasmuch as the changes in his circumstances had been voluntarily effected by him in disregard of his marital and parental obligations.\nHolt, Haire & Bridgers, by Ben Oshel Bridgers for plaintiff.\nMcKeever, Edwards, Davis & Hays, by Fred H Moody, Jr., for defendant." }, "file_name": "0504-01", "first_page_order": 532, "last_page_order": 537 }