{
  "id": 8522083,
  "name": "JENNIE L. MINGES v. MILES A. MINGES",
  "name_abbreviation": "Minges v. Minges",
  "decision_date": "1981-08-18",
  "docket_number": "No. 803DC1132",
  "first_page": "507",
  "last_page": "510",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T21:33:41.579477+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Clark and Wells concur."
    ],
    "parties": [
      "JENNIE L. MINGES v. MILES A. MINGES"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendant contends there was insufficient evidence of a change in the children\u2019s circumstances and needs to support the order directing him to make child support payments greater than provided in the separation agreement.\nThe terms of a separation agreement providing for payments by a parent for the support of his or her children are not binding on a court. Williams v. Williams, 261 N.C. 48, 134 S.E. 2d 227 (1964). In Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963), the Supreme Court held that in the absence of evidence to the contrary, there is a presumption that the amount mutually agreed upon in a separation agreement is just and reasonable and that a trial judge may not order an increase in the absence of any evidence of a change in conditions. Plaintiffs burden, when requesting an order increasing the amount of child support agreed upon by the parties in a separation agreement, is to show the amount reasonably required for the support of the children at the time of the hearing. Williams v. Williams, supra. In determining this amount, the trial court must consider the relative abilities of the parties to provide support for the children and \u201cthe reasonable needs of the children] for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the children] and the parties, and other facts of. the particular case.\u201d N.C. Gen. Stat. \u00a7 50-13.4(b) and (c). The amount of support for the children ordered is in the discretion of the trial court and will not be disturbed absent manifest abuse of discretion. Williams v. Williams, supra.\nDefendant concedes in his brief that he is financially able to pay the amount of child support ordered. The record clearly supports this concession by defendant. Defendant, however, argues the trial court improperly determined the reasonable needs of the children by accepting and incorporating into its order the plaintiffs financial affidavits which included a two-thirds/one-third allocation of many expenses and by failing to require the plaintiff to show the reasonable needs of the children with \u201cspecificity.\u201d We disagree.\nThe trial court made detailed findings as to the needs of the children and as to the relative abilities of the parties to provide for those needs. Although the trial court included plaintiffs financial affidavits in its order, it found, after hearing the evidence, that the expenditures listed by plaintiff were reasonable, with certain exceptions, and adjusted the figures accordingly. This is precisely what the Supreme Court stated a trial court should do in Coble v. Coble, 300 N.C. 708, 268 S.E. 2d 185 (1980).\nThe trial court also found sufficient change in circumstances to justify increasing the amount of child support required under the separation agreement after carefully and in great detail comparing the expenditures required for support of the children in 1977 with those required in the year preceding the hearing.\nWe find that the trial court\u2019s findings are fully supported by evidence presented. In turn, the court\u2019s factual findings support its conclusions and its order directing defendant to pay increased child support payments.\nDefendant also assigns as error the order of the court requiring him to pay attorney fees to plaintiffs counsel. In particular, defendant argues the trial court erred by finding that the suit involved issues of child custody and child support. We disagree.\nPlaintiffs complaint requested both an award of custody and of child support. In his answer, defendant denied plaintiff s allegation that she was a fit, suitable and proper person to have the care, custody and control of the minor children and that it was in the best interests of the children that plaintiff have custody. At the hearing, the parties stipulated that plaintiff was fit to have custody and that it was in the best interests of the children for plaintiff to have custody. For this reason, defendant contends custody was not in issue.\nAlthough plaintiff and defendant agreed plaintiff should have custody, this was a matter for the court to decide. The initiation of the action for the custody of the children placed the issue of custody of the children with the court. Walker v. Walker, 38 N.C. App. 226, 247 S.E. 2d 615 (1978). The trial court\u2019s findings of fact, which are supported by the evidence, comply with the requirements for an award of attorney fees in a child custody and support suit as stated by the Supreme Court in Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980). The trial court did not err by awarding plaintiff counsel fees.\nDefendant\u2019s remaining assignments of error are without merit and are overruled.\nJudge Phillips\u2019 order was based on sufficient evidence and he made proper findings and conclusions on the pertinent issues. Under such circumstances, the trial court\u2019s order should not be disturbed on appeal.\nThe order of the trial court is\nAffirmed.\nJudges Clark and Wells concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Beaman, Kellum, Mills, Kafer & Stallings by Charles William Kafer and J. Randal Hunter, for the plaintiff-appellee.",
      "Ward and Smith, by Michael P. Fanagan, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "JENNIE L. MINGES v. MILES A. MINGES\nNo. 803DC1132\n(Filed 18 August 1981)\n1. Divorce and Alimony \u00a7 24.2\u2014 child support \u2014 award greater than separation agreement provision\nEvidence of a change in the circumstances and needs of the parties\u2019 children was sufficient to support the trial court\u2019s order directing defendant to make child support payments greater than those provided for in the parties\u2019 separation agreement.\n2. Divorce and Alimony \u00a7 27\u2014 child custody and support \u2014 attorney\u2019s fees\nThe fact that the parties agreed that plaintiff should have custody of their children did not remove the question of custody from the trial court\u2019s consideration, and the suit was therefore one involving issues of child custody and support so that an award of attorney fees to plaintiffs counsel was proper.\nAPPEAL by defendant from Phillips, Judge. Judgment entered 3 July 1980 in District Court, CRAVEN County. Heard in the Court of Appeals 8 May 1981.\nPlaintiff brought this action on 19 April 1979 for custody of the minor children of the parties, child support and counsel fees. Defendant answered, denying the principal allegations of plaintiffs complaint, and pleading a separation agreement entered into by the parties on 20 May 1977 in defense of plaintiffs claim for child support.\nAfter hearing the evidence of both parties, the court entered an order awarding plaintiff custody and ordering defendant to pay an amount of child support greater than that required by the separation agreement and also counsel fees to plaintiffs attorney. Defendant appealed.\nBeaman, Kellum, Mills, Kafer & Stallings by Charles William Kafer and J. Randal Hunter, for the plaintiff-appellee.\nWard and Smith, by Michael P. Fanagan, for the defendant-appellant."
  },
  "file_name": "0507-01",
  "first_page_order": 535,
  "last_page_order": 538
}