{ "id": 8525986, "name": "MARY F. WALKER, Plaintiff v. CHARLES F. WALKER, Defendant, and UNITED STATES OF AMERICA, Garnishee", "name_abbreviation": "Walker v. Walker", "decision_date": "1983-09-06", "docket_number": "No. 8214DC884", "first_page": "644", "last_page": "652", "citations": [ { "type": "official", "cite": "63 N.C. App. 644" } ], "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": "133 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "260 N.C. 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575789 ], "year": 1963, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0635-01" ] }, { "cite": "128 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "258 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560928 ], "year": 1963, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0398-01" ] }, { "cite": "133 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576375 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0765-01" ] }, { "cite": "231 S.E. 2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549217 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0162-01" ] }, { "cite": "235 S.E. 2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572996, 8572934, 8572975, 8572914, 8572953 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0730-05", "/nc/292/0730-02", "/nc/292/0730-04", "/nc/292/0730-01", "/nc/292/0730-03" ] }, { "cite": "234 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548264 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0139-01" ] }, { "cite": "134 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "261 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571650 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0048-01" ] }, { "cite": "146 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "266 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559854 ], "year": 1966, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0144-01" ] }, { "cite": "158 S.E. 2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572341 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0235-01" ] } ], "analysis": { "cardinality": 699, "char_count": 16746, "ocr_confidence": 0.812, "pagerank": { "raw": 9.685819111991973e-08, "percentile": 0.5293380038759017 }, "sha256": "72f3b0f540dc84bce9d032f1db603a87dd60232678a12565f81e1bf70f726f78", "simhash": "1:872f900e4c0f7462", "word_count": 2790 }, "last_updated": "2023-07-14T21:55:10.514065+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WEBB concurs.", "Judge JOHNSON concurs in part and dissents in part." ], "parties": [ "MARY F. WALKER, Plaintiff v. CHARLES F. WALKER, Defendant, and UNITED STATES OF AMERICA, Garnishee" ], "opinions": [ { "text": "EAGLES, Judge.\nThe defendant first assigns as error the denial of defendant\u2019s 21 May 1982 motion to dismiss. He alleges that the action filed by plaintiff on 16 February 1978, and its subsequent dismissal with prejudice on 19 July 1978, acted as res judicata in the later action filed by plaintiff on 4 March 1982. A prior action concerning child support is res judicata only as long as the circumstances existing at the time of the prior action have remained the same. See Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). \u201c[Neither agreements nor adjudications for the custody or support of a minor child are ever final.\u201d McLeod v. McLeod, 266 N.C. 144, 153, 146 S.E. 2d 65, 71 (1966). We reject defendant\u2019s argument that the doctrine of res judicata applies. We find no error in the denial of defendant\u2019s motion to dismiss.\nDefendant next contends that the trial court erred in concluding, as a matter of law, \u201cthat the plaintiff is not required to show a substantial change in circumstances in order to modify the separation [sic] but rather, the plaintiff must show the amount reasonably required for the support of the child at the time of this hearing.\u201d The situation here is similar to that dealt with in Williams v. Williams, 261 N.C. 48, 134 S.E. 2d 227 (1964). In both cases, prior to the entry of the order appealed from, the defendant\u2019s child support payments were made under the terms of a separation agreement. Williams held that in such a case \u201cplaintiff\u2019s only burden was to show the amount reasonably required for the support of the children at the time of the hearing. The amount which the parties fixed on June 8, 1962 was merely evidence for the judge to consider, along with all the evidence in the case, in determining a reasonable amount for support of the children.\u201d Id. at 59, 134 S.E. 2d at 235. Plaintiff need not show and the trial court need not make findings concerning the needs of the child at the time the separation agreement was signed. Perry v. Perry, 33 N.C. App. 139, 234 S.E. 2d 449, rev. denied, 292 N.C. 730, 235 S.E. 2d 784 (1977). We, therefore, hold that plaintiff was not required to show a substantial change in circumstances from the time of the separation agreement as justification for an increase in child support payments.\nDefendant\u2019s final assignments of error in effect challenge the basis on which the court ordered an increase in defendant\u2019s child support payments. The trial court found as fact that:\n11. That at the time of the Separation Agreement, the parties owned a house located at 5500 Old Well Street, Durham, North Carolina. That simultaneously with the execution of the Separation Agreement, Charles F. Walker conveyed his interest in that home to Mary F. Walker. That thereafter, Mary F. Walker was forced to sell the home and now resides in an apartment.\n16. The plaintiff has the following reasonable monthly expenses necessary for the support of one minor child:\nRent $150.00\nElectricity 32.50\nTelephone 15.00\nCable TV 8.33\nHome Repairs 2.50\nNewspapers & Magazines 1.25\nDrycleaning & Laundry 10.00\nEducation 5.00\nChurch 2.00\nTransportation 146.98\nGroceries (Home) 125.00\nFood (Away) 5.00\nSchool Lunches 13.00\nClothing 40.00\nPersonal Items \u2014 5.00\nRecreation \u2014 20.00\nMedical & Dental \u2014 20.00\nGifts (Christmas & Birthdays) \u2014 43.49\nTotal $645.00\n17. That the defendant has submitted to the Court an affidavit showing his monthly expenses, which he alleges total $2,252.12. These expenses include a mortgage payment of $622.19 for a four bedroom house in which he is the sole occupant; a payment of $100.00 per month for an insert for his fireplace; an average monthly electricity bill of $108.00; and NCNB Bank Americard Bill of $100.00 monthly. The Court finds that the defendant Walker has voluntarily undertaken unreasonable expenses to the detriment of his ability to support his minor child.\n18. That the plaintiff has a net monthly income of $836.00 and reasonable monthly expenses of $645.00. Plaintiff is employed by the Durham County Schools in the capacity of teach [sic] of Physical Education.\n19. That based on parties income and reasonable expenses, and the needs of the child for health, education and maintenance in the accustomed standard of living of the child and the parties, the homemaker contribution of the plaintiff, this Court determines that the defendant should pay 60% of the reasonable needs of the child or $387.00 and the plaintiff should bear the remaining 40%.\n20. That the plaintiff provides the following homemaking services for the minor child:\nActivity Hours\nCooking r\u201ci\nCleaning t \u2014 I\nLaundry\nShopping\nTutoring\nNurse\nChauffeur\nDietitian\nDishwasher LO\nChild Care 00 T \u2014 I\nFamily Counseling LO CO\nSeamstress \u00a9 rH\n21. The defendant provides no homemaking contribution for the minor child.\n23. The Court takes judicial notice of the substantial increase in the costs of raising a child caused by inflation.\n25. The Court finds as a fact that the plaintiff is in need of financial assistance from defendant father for the partial support of the child. And that he is capable of providing such support.\nThe Court then concluded as a matter of law that:\n4. The Court has taken the terms of the Separation Agreement into consideration but finds as a matter of law that this agreement does not operate to remove the child, Tiffany Walker, from the supervision of the Court in regards to the matter of support and that the Court is not bound by the terms of the agreement. The Court finds that as a matter of law there has been a showing of need by the plaintiff which requires the change of the provision of the separation agreement relating to support. The Court determines that the welfare of the child and the estates of the parties require that the defendant pay 60% of the child\u2019s reasonable needs or $387.00. This amount is exclusive of any amount the defendant is required to pay as alimony. The Court finds as a matter of law that the plaintiff is not required to show a substantial change in circumstances in order to modify the separation [sic] but rather, the plaintiff must show the amount reasonably required for the support of the child at the time of this hearing. Nevertheless, this Court finds that as a matter of law there has been a material change of circumstances in that the plaintiff no longer resides in the marital home which she was forced to sell; that the needs of the child for support of the minor from defendant clearly exceed the $175.00 per month payment required in the separation agreement; and that the income of the defendant has increased from $25,000.00 per year to $32,000.00 per year.\nThese findings of fact and conclusions of law must be supported by competent evidence. Wyatt v. Wyatt, 32 N.C. App. 162, 231 S.E. 2d 42 (1977). The trial court\u2019s order increasing the amount of child support which defendant must pay can be disturbed only upon a showing of a gross abuse of discretion. Coggins v. Coggins, 260 N.C. 765, 133 S.E. 2d 700 (1963); Wyatt v. Wyatt, supra.\nThe trial court took judicial notice of the general effect of inflation on the cost of raising a child without making findings as to its particular effect upon the amount necessary to provide reasonable support for the child in the case sub judice. We hold that the trial court did not abuse its discretion by taking judicial notice of the current inflationary economic trend. Our Supreme Court has previously taken judicial notice of the general effect of inflation, stating that \u201c[i]t is a matter of common knowledge that the value of the dollar has depreciated during the past several years, resulting in a higher price for commodities, including real estate.\u201d In re Pine Raleigh Corp., 258 N.C. 398, 402, 128 S.E. 2d 855, 858 (1963).\nWe next consider whether the trial court erred in basing its order increasing defendant\u2019s support payments in part upon the finding of fact and conclusion of law that plaintiff \u201cwas forced to sell the home\u201d which defendant had deeded to her under the terms of the separation agreement. The only evidence in the record directly on this point was the response of plaintiff when asked if she had sold the home: \u201cYes, I had to.\u201d Her testimony further revealed that she was currently renting an apartment in which she and her daughter resided. There was no evidence in the record indicating that plaintiff\u2019s costs had increased as a result of the sale of the home and the renting of an apartment. Plaintiffs mere assertion that she \u201chad to\u201d sell the house does not establish an increase in child support costs and does not provide a basis for ordering an increase in child support payments.\nDefendant also assigns as error the trial court\u2019s consideration of his increased income as a factor in determining the amount reasonably necessary to support his child. \u201c[T]he court upon motion for an increase in such allowance, is not warranted in ordering an increase [in support] in the absence of any evidence of a change in conditions or of the need for such increase, particularly when the increase is awarded solely on the ground that the father\u2019s income has increased, therefore, he is able to pay a larger amount.\u201d Fuchs v. Fuchs, 260 N.C. 635, 639, 133 S.E. 2d 487, 491 (1963). Only upon a determination that the reasonable needs of the child require an increase in child support payments, could the trial court properly consider defendant\u2019s increased income as a factor in determining the amount of that increase. We must therefore address defendant\u2019s contention that there was no competent evidence supporting the findings of fact and conclusions of law that the child\u2019s reasonable expenses exceeded defendant\u2019s present monthly child support payment.\nThe trial court found that the child had reasonable monthly expenses of $645.00. Included in this total were several expenditures for essentials which plaintiff would have made even if her daughter had not been residing with her. These fixed expenses included rent, electricity, telephone, home repairs, and transportation. Defendant\u2019s brief asserts that the trial court arrived at these amounts simply by allocating one-half of each of the fixed expenses to the minor child. There is certainly no evidence to support an assumption that one-half of the cost in each of these categories should be attributed to the minor child. While some portion of each of these expenditures might be attributable to the child, there was no evidence in the record proper supporting the trial court\u2019s assumption that the particular amount allocated to each of these categories should be attributed to the minor child.\nIn addition, the trial court found as a reasonable monthly expense a $43.49 expenditure for Christmas and birthday gifts. Over a twelve-month period this would amount to $521.88 for gifts alone. We hold this expense to be patently unreasonable in light of the fact that significant expenditures for the benefit of the child were already being made monthly for Cable TV, newspapers and magazines, food away from home, clothing, personal items and recreation.\nFor the foregoing reasons we hold that, because of the lack of competent supporting evidence, the court erred in concluding as a matter of law that the child\u2019s reasonable monthly expenses totalled $645.00.\nWe reverse and remand for further findings of fact and conclusions of law in accordance with this opinion.\nReversed and remanded.\nJudge WEBB concurs.\nJudge JOHNSON concurs in part and dissents in part.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge JOHNSON\nconcurring in part and dissenting in part.\nI fully concur with the majority\u2019s disposition of defendant\u2019s assignments of error relating to his motion to dismiss, whether the plaintiff need show a substantial change in circumstances from the time of the separation agreement as justification for an increase in child support payments, and the basis on which the court ordered an increase in defendant\u2019s child support payments. In addition, I agree with the deletion of the $43.49 expenditure for Christmas and birthday gifts from the list of reasonable monthly expenses for the child. Clearly these are not regular monthly expenditures. However, I must respectfully dissent from that portion of the opinion which holds that the trial court erred in its determination of the child\u2019s monthly expenses.\nIn my opinion, the trial court committed no error by allocating to the minor child one-half of the cost of each of the fixed expenses listed by the plaintiff mother. To require the District Court judge to determine as a matter of law the actual amount of rent, electricity, telephone, home repairs, and transportation used by the parties\u2019 child with any greater precision than this would be to impose a nearly impossible and needlessly time-consuming burden on the court. In the absence of evidence to the contrary, it is entirely proper for the court to allocate one-half of the fixed living expenses to the minor child who resides with her mother in determining the amount to be paid by defendant for the child\u2019s monthly support.", "type": "dissent", "author": "Judge JOHNSON" } ], "attorneys": [ "Law firm of Eric C. Michaux, by Eric C. Michaux and Robert Brown, Jr., for plaintiff-appellee.", "Powe, Porter & Alphin, by N. A. Ciompi and William E. Freeman, for defendant-appellant." ], "corrections": "", "head_matter": "MARY F. WALKER, Plaintiff v. CHARLES F. WALKER, Defendant, and UNITED STATES OF AMERICA, Garnishee\nNo. 8214DC884\n(Filed 6 September 1983)\n1. Divorce and Alimony \u00a7 24.11\u2014 when child support order is res judicata\nA prior action concerning child support is res judicata only as long as the circumstances existing at the time of the prior action have remained the same.\n2. Divorce and Alimony \u00a7 24.3\u2014 child support \u2014increase in amount required by separation agreement \u2014 burden of proof\nPlaintiff was not required to show a substantial change in circumstances from the time of a separation agreement as justification for an increase in child support over the amount required by the separation agreement but was required to show only the amount reasonably required for support of the child at the present time.\n3. Divorce and Alimony \u00a7 24.1; Evidence \u00a7 3.5\u2014 judicial notice of inflation\nThe trial court did not err in taking judicial notice of the general effect of inflation on the cost of raising a child in determining the amount of child support to be awarded to plaintiff.\n4. Divorce and Alimony \u00a7 24.8\u2014 sale of house \u2014no evidence of increased child support costs\nPlaintiffs mere assertion that she \u201chad to\u201d sell a house which defendant deeded to her under the terms of a separation agreement did not establish an increase in child support costs and did not provide a basis for ordering an increase in child support payments.\n5. Divorce and Alimony \u00a7 24.1\u2014 monthly expenses of child \u2014 finding not supported by evidence\nThe trial court\u2019s finding that a child had reasonable monthly expenses of $645.00 was not supported by the evidence where the court attributed to the child one-half of the mother\u2019s monthly expenses for rent, electricity, telephone, home repairs, and transportation, but there was no evidence in the record to support such an allocation of expenses, and where the trial court\u2019s finding included a patently unreasonable amount of $43.49 per month for Christmas and birthday gifts for the child.\nJudge Johnson concurring in part and dissenting in part.\nAPPEAL by defendant from LaBarre, Judge. Judgment entered 24 June 1982 in District Court, DURHAM County. Heard in the Court of Appeals 8 June 1983.\nPlaintiff and defendant were married 20 July 1968. One child, Tiffany Antoinette Walker, was born of that marriage. The parties subsequently separated, entering into a separation agreement on 23 June 1975. Under the terms of the separation agreement, defendant agreed to pay $175.00 monthly as child support and to increase that amount by $10.00 per month each year he received a pay increase. Defendant later obtained a divorce decree in Wake County.\nOn 16 February 1978, plaintiff brought an action against defendant requesting that the court order the defendant to make payments according to the separation agreement. For reasons not pertinent to this appeal, that action was dismissed with prejudice on 19 July 1978.\nOn 4 March 1982, plaintiff filed a second action requesting inter alia an increase in child support payments. On 21 May 1982 defendant made a motion to dismiss which was denied. After hearing the testimony of both parties and reviewing the separation agreement, the support payment chart and the affidavits of financial standing of both parties, the court made extensive findings of fact and concluded, as a matter of law, that there was a need for an increase in defendant\u2019s child support payments to $387.00 monthly.\nFrom the order entered pursuant to those findings of fact and conclusions of law, defendant appeals.\nLaw firm of Eric C. Michaux, by Eric C. Michaux and Robert Brown, Jr., for plaintiff-appellee.\nPowe, Porter & Alphin, by N. A. Ciompi and William E. Freeman, for defendant-appellant." }, "file_name": "0644-01", "first_page_order": 676, "last_page_order": 684 }