{
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  "name": "ROGER D. BYRD v. CRYSTAL R. BYRD",
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    "judges": [
      "Chief Judge VAUGHN and Judge ARNOLD concur."
    ],
    "parties": [
      "ROGER D. BYRD v. CRYSTAL R. BYRD"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nPlaintiff assigns as error the award by the trial court of $750.00 per month in child support. Plaintiff contends that the award was based on findings of fact not supported by the evidence. Plaintiff argues that awards of child support must be based on appropriately detailed findings of fact. To this end, plaintiff contends the trial court\u2019s Finding of Fact No. 4 which states, \u201cthe needs of the minor children of the parties are set forth in the affidavit of Crystal R. Byrd, which was filed in this action,\u201d is not a legally sufficient finding upon which to base an award of child support.\nPlaintiffs contention has two premises. First, that the trial court, in failing to enumerate specifically its findings as to the needs of the children, did not provide an adequate factual basis as to the amount of support required. Second, that the trial court\u2019s finding of fact as to the needs of the children is not supported by the evidence.\nA trial court, in determining a proper amount to be awarded for the support of minor children is directed by statute to consider the \u201creasonable needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.\u201d N.C. Gen. Stat. Sec. 50-13.4(c). The Supreme Court in Coble v. Coble, 300 N.C. 708, 712, 268 S.E. 2d 185, 189 (1980), said that an order for child support \u201cmust be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to meet the reasonable needs of the child and (2) the relative ability of the parties to provide that amount.\u201d Coble further holds that where the trial court sits without a jury, the judge is required to make factual findings \u201cspecific enough to indicate to the appellate court that . . . \u2018due regard\u2019 \u201d was taken of the factors enumerated in the statute. Id.\nWith regard to what the findings of fact concerning the needs of the minor children must contain, there are no set guidelines. The appellate courts of this state require only that the findings be based on competent evidence as to what the needs of the children are, Hampton v. Hampton, 29 N.C. App. 342, 224 S.E. 2d 197 (1976), and that such findings sustain the conclusion that the support payments ordered are in such amount as to meet the reasonable needs of the child. Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E. 2d 26 (1977). The evidence must support the facts found by the trial court which in turn support the trial court\u2019s conclusions of law which in their turn provide a basis for the trial court\u2019s judgment. Each link in this chain of reasoning must appear in the trial court\u2019s order. Coble v. Coble, 300 N.C. 708, 268 S.E. 2d 185 (1980).\nIn Steele v. Steele, 36 N.C. App. 601, 604, 244 S.E. 2d 466, 468-469 (1978), this Court held that the trial court\u2019s conclusions as to the abilities of the parties to provide support must be supported by \u201cfindings of specific facts (e.g., incomes, estates)\u201d and that conclusions as to the reasonable needs of the minor children must be supported by findings of specific facts as to actual past expenditures. Where past expenditures are below subsistence, due regard must be given to meeting the reasonable needs of the child.\nIn the present case, there was evidence in the form of an affidavit submitted by defendant that itemized the monthly financial needs of the three minor children. These needs amounted to $946.00. In her testimony, defendant indicated that these itemized amounts were in excess of actual past expenditures but that they reflected her needs. There was no evidence that the needs of the children were otherwise than specified in defendant\u2019s affidavit.\nThe trial court, in its order, made specific reference to the defendant\u2019s affidavit rather than setting forth the specific facts regarding the needs of the children. To have done otherwise would have amounted to a recitation of the uncontradicted evidence.\nWith respect to the other half of the child support equation, the relative abilities of the parties to pay, plaintiff excepts to and assigns as error the trial court\u2019s findings of fact regarding the respective incomes and estates of plaintiff and defendant. Plaintiff argues that these findings of fact were not supported by the evidence. While there is conflicting evidence on these points, the findings of fact are supported by evidence in the record introduced without objection, and are thus binding on appeal. Plaintiff\u2019s assignments of error amount to an attempt to reargue the evidence adduced at the hearing in the hope that this Court will substitute itself for the trial court and accept plaintiff\u2019s version of the evidence. This we cannot do. Beall v. Beall, 290 N.C. 669, 228 S.E. 2d 407 (1976). \u201cThe trial court must itself determine what pertinent facts are actually established by the evidence before it, and it is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal.\u201d Coble v. Coble, 300 N.C. at 712-713, 268 S.E. 2d at 189.\nBased on these findings, the trial court concluded that plaintiff should be ordered to pay child support in the amount of $750.00 per month. Plaintiff argues that the trial court, in setting this amount, made no inquiries as to the reasonableness of the expenses itemized in defendant\u2019s affidavit and no finding as to the relative abilities of the parties to pay. With regard to the expenses of a party claiming child support, there is a requirement that the trial court be satisfied as to the reasonableness of the itemized expenses. Coble v. Coble, 300 N.C. 708, 268 S.E. 2d 185 (1980). However, absent contrary indications in the record, there is no requirement that a specific conclusion as to the reasonableness of such expenses be made, although to do so is the preferred practice. In such a case, as here, it is presumed, absent evidence to the contrary, that the expenses claimed have been deemed reasonable by the trial court. Id.\nThe trial court\u2019s conclusion is also premised on specific findings of fact that defendant is unable to pay the itemized expenses from her income and that plaintiff has the ability to pay an increased amount of child support. Again, plaintiff\u2019s contention that these findings are not based on record evidence is without merit and the trial court\u2019s conclusion was properly drawn. Moreover, in awarding the amount of $750.00 per month, the trial court substantially reduced the amount of child support claimed by defendant, indicating that there was some regard given to the reasonableness of the expenses and the relative abilities of the parties to provide for them. The amount of child support to be awarded is within the discretion of the trial court, based on its consideration of the evidence before it. Absent a showing of an abuse of that discretion, the trial court\u2019s award will not be disturbed on appeal. Gibson v. Gibson, 24 N.C. App. 520, 211 S.E. 2d 522 (1975). Such a showing has not been made by plaintiff in this case. Further, plaintiff makes no exception in his appeal to the trial court\u2019s finding of fact that the children need support from plaintiff in the amount of $750.00 per month.\nPlaintiff next excepts to and assigns as error the trial court\u2019s finding of fact that there had been a change in circumstances since the signing of the separation agreement in December 1978. Plaintiff contends that there is no evidence that he is any better able to provide for the support of the children or that the needs of the children have increased. In the absence of such evidence, plaintiff argues, such a finding of fact is improper and modification of the amount of child support specified in the Separation Agreement was not warranted.\nThe amount of child support agreed to by the parties to a Separation Agreement is presumed to be just and reasonable. Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963). However, separation agreements are not binding on the courts and the presumption of the reasonableness of the child support specified therein attaches only in the absence of evidence to the contrary. Id. Here, there is evidence to support the trial court\u2019s finding of fact. This evidence was introduced without objection at the hearing, therefore, the trial court\u2019s finding of fact will not be disturbed.\nFinally, plaintiff assigns as error the award by the trial court of attorney\u2019s fees to defendant\u2019s attorney. Plaintiff contends that such an award is appropriate in actions for child support only where it is alleged and proved that the party claiming attorney\u2019s fees is (1) acting in good faith, (2) has insufficient means to defray the expense and (3) the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time the action is instituted. Plaintiff further contends that such relief must be prayed for in the pleadings. In support of his contention, plaintiff argues that defendant\u2019s Answer and Counterclaim does not make the required allegations or pray for the appropriate relief and that an award of attorney\u2019s fees is therefore improper.\nThe findings required to justify an award of attorney\u2019s fees must ordinarily be alleged and proved, Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980), and the court must find as a fact that the request for adequate support had been refused at the time the matter was instituted. N.C. Gen. Stat. Sec. 50-13.6. However, when issues not raised in the pleadings are tried by the express or implied consent of the parties, North Carolina allows for the pleadings to be amended to conform to the evidence. N.C. Gen. Stat. Sec. 1A-1, Rule 15(b). Where a party offers evidence at trial which introduces a new issue and there is no objection by the opposing party, the opposing party is viewed as having consented to the admission of the evidence and the pleadings are deemed amended to include the new issue. Hardison v. Williams, 21 N.C. App. 670, 205 S.E. 2d 551 (1974).\nHere, the required allegations and pleadings were not made in defendant\u2019s answer and counterclaim. However, it was found from the evidence at the hearing that the defendant was acting in good faith, that she had insufficient means to defray the expense of the suit and that plaintiff had refused a request to furnish adequate support at the time the action was instituted. These findings are supported by evidence in the record which was introduced at the hearing without objection by plaintiff. Since plaintiff did not object to the admission of this evidence, the pleadings are deemed to be amended to conform to the evidence and the trial court\u2019s award of attorney\u2019s fees was therefore proper.\nAffirmed.\nChief Judge VAUGHN and Judge ARNOLD concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Hatfield, Hatfield & Kinlaw, by Kathryn K. Hatfield for the plaintiff, appellant.",
      "Smith, Patterson, Follin, Curtis, James & Harkavy, by J. David James for the defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "ROGER D. BYRD v. CRYSTAL R. BYRD\nNo. 8218DC648\n(Filed 7 June 1983)\n1. Divorce and Alimony \u00a7 24.9\u2014 child support \u2014 sufficiency of findings\nA finding that \u201cthe needs of the minor children of the parties are set forth in the affidavit of [defendant mother], which was filed in this action\u201d was a sufficient finding upon which to base an award of child support where there was no evidence that the needs of the children were otherwise than specified in defendant\u2019s affidavit. Moreover, the evidence supported the court\u2019s findings as to the relative abilities of the parties to pay, and the court\u2019s findings supported its conclusion that plaintiff father should be ordered to pay child support of $750.00 per month. G.S. 50-13.4(c).\n2. Divorce and Alimony \u00a7 24.2\u2014 child support \u2014 modification of amount in separation agreement \u2014 changed circumstances\nThe evidence supported the trial court\u2019s finding that there had been a change in circumstances since the parties signed a separation agreement so as to justify an increase in child support from the $400.00 per month required by the agreement to $750.00 per month.\n3. Divorce and Alimony \u00a7 27\u2014 child support \u2014 attorney\u2019s fees \u2014 pleadings deemed to conform to evidence\nAlthough defendant\u2019s answer and counterclaim in which she sought child support did not include the required allegations or prayer for an award of attorney\u2019s fees, the pleadings are deemed to conform to the evidence, and the trial court\u2019s award of attorney\u2019s fees was proper, where the trial court found upon evidence introduced without objection that defendant was acting in good faith, that she had insufficient means to defray the expense of the suit and that plaintiff had refused a request to furnish adequate child support at the time the action was instituted. G.S. 50-13.6; G.S. 1A-1, Rule 15(b).\nAPPEAL by plaintiff from Yeattes, Judge. Order entered 2 February 1982 in District Court, GUILFORD County. Heard in the Court of Appeals 9 May 1983.\nPlaintiff instituted this action against defendant by filing a complaint on 31 December 1979 seeking divorce from defendant based on one year\u2019s separation. In her Answer and Counterclaim of 7 February 1980, defendant admitted the allegations in the complaint and sought custody of the minor children of the marriage and child support over and above the child support of $400.00 per month agreed to in a separation agreement signed by the parties on 27 December 1978. Divorce was granted on 11 February 1980. Defendant filed a motion seeking an increase in child support, and in a hearing confined to the issue of the amount of child support, both parties gave testimony relating to their expenses and income. On 2 February 1982, plaintiff was ordered to pay into the office of the Clerk of Superior Court $750.00 per month in child support and to pay reasonable attorney\u2019s fees of $1,300.00 to defendant\u2019s attorney. From this order, plaintiff appealed.\nHatfield, Hatfield & Kinlaw, by Kathryn K. Hatfield for the plaintiff, appellant.\nSmith, Patterson, Follin, Curtis, James & Harkavy, by J. David James for the defendant, appellee."
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