{
  "id": 8526303,
  "name": "KATHY ANN NEWMAN v. JAMES MICHAEL NEWMAN",
  "name_abbreviation": "Newman v. Newman",
  "decision_date": "1983-09-20",
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  "last_updated": "2023-07-14T21:03:16.623003+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Chief Judge VAUGHN and Judge HILL concur."
    ],
    "parties": [
      "KATHY ANN NEWMAN v. JAMES MICHAEL NEWMAN"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nI\nPlaintiff wife and defendant husband were married in November 1969. They lived together until 16 July 1978. On 22 November 1978 they entered into a separation agreement. Under the terms of the agreement, the wife received custody of the parties\u2019 one minor child and child support in the amount of $50 per week. On 16 October 1979 the parties obtained an absolute divorce. Shortly thereafter, the wife sought an increase in child support alleging a change in the child\u2019s needs and an increase in the husband\u2019s ability to pay. In an order entered 6 August 1980, Judge Ralph Davis, Yadkin County District Court, granted an increase in child support to $80 per week.\nOn 16 February 1982, the husband filed a motion to reduce the child support payments based on a change in circumstances \u2014 his wife\u2019s remarriage and increased earning capacity. In an order entered 27 May 1982, Samuel L. Osborne, Yadkin County\u2019s Chief District Court Judge, made the following findings of fact regarding the financial standing of the parties:\nAt the time of the hearing before Judge Davis, the plaintiff was unemployed, but she resumed working in January of 1981, and is presently employed and has a gross income of about $750.00 per month. The plaintiff has remarried and has no other children. Her present husband is regularly employed and earns about $4.85 per hour.\nPlaintiff and her husband live in a fairly new mobile home which is paid for and was purchased with part of the $20,000.00 received from the defendant pursuant to the Separation Agreement, which mobile home is parked on land owned by the plaintiff\u2019s parents. During the past year, the defendant had gross income for tax purposes of about $58,000.00; however, the defendant has actual income of only about $325.00 per week take-home pay.\nThe defendant owns about a one-fourth interest in a well-drilling business, and at the present time, the business is in a slump due to economic conditions. The defendant has remarried and presently has three step-children residing in the home. His present wife receives only the sum of $300.00 per month in child support.\nBased upon these findings of fact, Judge Osborne concluded as a matter of law that there had been a \u201csubstantial change of circumstances\u201d since the 6 August 1980 order. Defendant was granted a reduction in child support from the previous $80 per week payment to $50 per week. Plaintiff appeals.\nII\nThe wife first argues that the trial court\u2019s findings of fact do not support an order decreasing child support. We agree.\nAn order for child support may be modified upon motion and a showing of changed circumstances by either party. N.C. Gen. Stat. \u00a7 5043.7(a) (1981). N.C. Gen. Stat. \u00a7 5043.4(c) (1981) sets out the factors to be considered in determining the amount of child support. Our Supreme Court has recently reiterated the need for findings of specific fact in child support orders.\nUnder G.S. 5043.4(c) ... an order for child support must be based upon the interplay of the trial court\u2019s conclusions of law as to (1) the amount of support necessary to \u201cmeet the reasonable needs of the child\u201d and (2) the relative ability of the parties to provide that amount. These conclusions must themselves be based upon factual findings specific enough to indicate to the appellate court that the judge below took \u201cdue regard\u201d of the particular \u201cestates, earnings, conditions, [and] accustomed standard of living\u201d of both the child and the parents. ... It is not enough that there may be evidence in the record sufficient to support findings which could have been made.\nCoble v. Coble, 300 N.C. 708, 712, 268 S.E. 2d 185, 189 (1980). Not only must the trial court hear evidence on each of the factors listed above, but the trial court must also substantiate its conclusions of law by making findings of specific facts on each of the listed factors. See Steele v. Steele, 36 N.C. App. 601, 244 S.E. 2d 466 (1978). The trial court must hear evidence and make findings of specific fact on the child\u2019s actual past expenditures and present reasonable expenses to determine \u201cthe reasonable needs of the child.\u201d Steele at 604, 244 S.E. 2d at 469; Daniels v. Hatcher, 46 N.C. App. 481, 484, 265 S.E. 2d 429, 432, disc. rev. denied, 301 N.C. 87, \u2014 S.E. 2d \u2014 (1980). Further, the trial court must hear evidence and make findings of fact on the parents\u2019 income, estates (e.g., savings; real estate holdings, including fair market value and equity; stocks; and bonds) and present reasonable expenses to determine the parties\u2019 relative ability to pay. Steele at 604, 244 S.E. 2d at 469; Daniels at 484, 265 S.E. 2d at 432.\nIn the case before us, the trial court failed to consider evidence and make findings of fact on the child\u2019s actual past expenditures or present reasonable needs. In addition, the trial court\u2019s findings on the parties\u2019 income were disparate: the wife\u2019s approximate gross monthly income; her present husband\u2019s approximate gross hourly wage; the husband\u2019s net weekly wage; no finding on his present wife\u2019s income. The court failed to make findings of fact on the parties\u2019 estates beyond stating that the wife owned a mobile home and the husband owned a one-fourth interest in a well-drilling business. The evidence showed that the husband also owned a house and that the value of his interest in the business had increased through stock dividends. The trial court made no findings of fact on the parties\u2019 expenses.\nFor the foregoing reasons the trial court\u2019s order decreasing child support is not based on sufficient findings of fact.\nIll\nThe wife excepts and assigns error to the trial court\u2019s consideration of circumstances which predated the most recent order (6 August 1980) in determining a change in circumstances.\nIn modifying a child support order the trial court should consider only changes in circumstances since entry of the most recent order. Shipman v. Shipman, 25 N.C. App. 213, 216, 212 S.E. 2d 415, 417 (1975). The trial court examined the husband and made findings of fact on the amount of child support his present wife received for her three children by a prior marriage. The husband had remarried on 15 November 1979, prior to the entry of the 6 August 1980 order. Since the husband had already remarried at the time of the 6 August 1980 order, the amount of child support received by his present wife was a factor to be considered in the 6 August 1980 order. Under Shipman, a trial court seeking to modify an order may consider only changes in circumstances since that entry date. In this case, the trial court based its conclusions on inappropriate findings. The child support for the husband\u2019s stepchildren did not represent a change in circumstances.\nFurther, on the facts of this case, the presence or absence of support for defendant\u2019s stepchildren should not be a factor in modifying the 6 August 1980 order. \u201cPayment of support for a child of a former marriage may not be avoided merely because the husband has remarried and thereby voluntarily assumed additional obligations.\u201d Shipman at 215, 212 S.E. 2d at 417. The lack of adequate support for the husband\u2019s stepchildren does not justify a reduction in child support payments for the husband\u2019s own child.\nIV\nThe wife excepts and assigns error to the trial court\u2019s finding of fact on her present husband\u2019s income in determining the parties\u2019 relative ability to pay. The trial court found that the wife\u2019s present husband was \u201cregularly employed\u201d and earned \u201cabout $4.85 per hour.\u201d A stepparent is not under a blanket obligation to support children of his spouse\u2019s former marriage. 3 R. Lee, North Carolina Family Law \u00a7 238 (4th ed. 1981). Lee points out that a stepparent\u2019s liability rests on whether he has voluntarily taken the stepchild into his home \u201cin such a way that he places himself in loco parentis to him.\u201d The trial court must draw this conclusion based on the particular facts of the case. Id. The trial court failed to hear evidence on this issue. Findings of fact must be supported by competent evidence. Coble at 714, 268 S.E. 2d at 189. The trial court based its conclusions on faulty findings of fact.\nFor the above reasons, the order is vacated as to the decreased child support payments, and the matter is remanded for further findings.\nVacated and remanded.\nChief Judge VAUGHN and Judge HILL concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Ferree, Cunningham & Gray, P.A., by George G. Cunningham, for plaintiff appellant.",
      "Franklin Smith for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "KATHY ANN NEWMAN v. JAMES MICHAEL NEWMAN\nNo. 8223DC959\n(Filed 20 September 1983)\n1. Divorce and Alimony \u00a7 24.9\u2014 modification of child support order \u2014 findings of fact insufficient and not supporting order\nThe trial court erred in decreasing the amount of child support due plaintiff where the court failed to consider evidence and make findings of fact on the child\u2019s actual expenditures or present reasonable needs, findings of fact on the parties\u2019 estates, findings of fact on the parties\u2019 expenses, and where the findings on the parties\u2019 incomes were disparate.\n2. Divorce and Alimony \u00a7 24.6\u2014 child support \u2014evidence of changed circumstances erroneously considered\nThe trial court erred in a proceeding to modify child support by considering changes in circumstances which predated the most recent order of child support, the presence or absence of support for defendant\u2019s stepchildren, and in considering plaintiffs present husband\u2019s income in determining the parties\u2019 relative ability to pay without considering the relationship of the stepparent to the stepchild.\nAPPEAL by plaintiff from Osborne, Judge. Order entered 27 May 1982 in District Court, YADKIN County. Heard in the Court of Appeals 22 August 1983.\nPlaintiff appeals from a decision of the trial court granting defendant\u2019s motion to decrease the amount of child support payments.\nFerree, Cunningham & Gray, P.A., by George G. Cunningham, for plaintiff appellant.\nFranklin Smith for defendant appellee."
  },
  "file_name": "0125-01",
  "first_page_order": 157,
  "last_page_order": 162
}
