{ "id": 8526372, "name": "NANCY JONES KENNON v. GEORGE MARION KENNON, JR.", "name_abbreviation": "Kennon v. Kennon", "decision_date": "1984-12-28", "docket_number": "No. 8418DC196", "first_page": "161", "last_page": "167", "citations": [ { "type": "official", "cite": "72 N.C. App. 161" } ], "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": "285 S.E. 2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568167, 8568205, 8568301, 8568272, 8568240 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0390-01", "/nc/304/0390-02", "/nc/304/0390-05", "/nc/304/0390-04", "/nc/304/0390-03" ] }, { "cite": "278 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170120 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0203-01" ] }, { "cite": "321 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "269 S.E. 2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551088 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0430-01" ] } ], "analysis": { "cardinality": 563, "char_count": 12865, "ocr_confidence": 0.783, "pagerank": { "raw": 1.0811392109708868e-07, "percentile": 0.5625326032521587 }, "sha256": "9c25dafe96bfbe6a374f92e64f81f811aa2d483ec52f8da36588e6e63f71d049", "simhash": "1:c8fbc2b18bcf154e", "word_count": 2188 }, "last_updated": "2023-07-14T20:36:04.939100+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wells concur." ], "parties": [ "NANCY JONES KENNON v. GEORGE MARION KENNON, JR." ], "opinions": [ { "text": "BECTON, Judge.\nIn this child support and custody action, we must determine if the trial court erred by (a) allowing the wife\u2019s motion for change of venue; (b) denying the husband\u2019s motion to stay proceedings pending the appeal of the order changing venue; and (c) denying the husband\u2019s motion to dismiss for insufficiency of the evidence.\nI\nSeeking full custody of, and child support for, the two minor children of the marriage, the wife initiated this action in Rock-ingham County in 1977. Shortly thereafter, on 2 August 1977, a consent judgment was entered which stated, in essence, that the wife would be responsible for the care, custody, support and maintenance of the two children during the school year and that the husband would be responsible for the same during the summer. Although the wife was then, and is now, making more money than the husband, as part of the consent judgment, the husband was required to pay to the wife Ten Dollars ($10.00) per week per child as child support.\nOn 23 April 1978, after an absolute divorce had been granted the parties in the Rockingham County District Court, the wife filed a motion in the cause, seeking a modification of the consent judgment entered on 2 August 1977. Her motion was denied by a Rockingham County district court judge who ordered that the consent order remain in full force and effect. Sometime thereafter all the parties moved to Guilford County. On 3 May 1983 the wife filed a motion for change of venue from Rockingham County to Guilford County and, contemporaneously therewith, filed a motion (a) to increase child support; (b) to decrease the summer custody of the husband with the minor children; (c) to require the husband to repay a $1,000 loan made by the wife to the husband; and (d) for reasonable attorney fees.\nOn 20 May 1983, an order was entered transferring the case to Guilford County pursuant to the wife\u2019s motion for change of venue. The husband gave notice of appeal, but a Guilford County district court judge ruled that the appeal was premature and then denied the husband\u2019s motion for a stay of the proceedings. The matters contained in the wife\u2019s other motion were then calendared for hearing. On 22 September 1983, a hearing was held, with both sides presenting evidence. From an order requiring him to pay child support of $125.00 per month per child, to repay the wife $1,000 that she had loaned him, to pay her attorney\u2019s fees in the amount of $450, and increasing the wife\u2019s period of child custody, the husband appeals. The husband also appeals the earlier court order allowing the wife\u2019s motion to change venue and denying his motion to stay the proceedings pending the appeal of the order changing venue.\nII\nA. Venue\nWe address first the change of venue issue. The husband contends that there is no statutory authority for the order changing venue, and, even if there were, the trial court abused its discretion by transferring this action to Guilford County. We do not agree.\nNeither party contends that the wife could, as a matter of right, have had this matter removed to Guilford County. The applicable statutes on discretionary venue will therefore be discussed.\nAlthough N.C. Gen. Stat. Sec. 1-82 (1983), controlling venue in cases that are not specifically covered by other statutes, provides that: \u201cIn all other cases, the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement, . . .\u201d it must be remembered that this matter comes before us based on a motion filed in the cause. More important, N.C. Gen. Stat. Sec. 1-83(2) (1983) provides that a matter may be transferred for the convenience of witnesses and the ends of justice. In her motion for a change of venue, the wife specifically alleged that both parties had become Guilford County residents and further alleged that the convenience of parties and witnesses would be best served by the matter being removed to Guilford County. In its order changing venue, the court specifically found that both parties had become Guilford County residents and that \u201c[t]he matter in large part involve[d] economic issues such as th\u00e9 cost of supporting the children [and that] these issues are relative to the geographic location of the children and parties.\u201d We find no abuse of discretion in allowing the motion to change venue.\nWith regard to the denial of the husband\u2019s motion to stay proceedings pending an appeal of the order allowing a change in venue, we note that an order denying a motion for a change of venue, pursuant to G.S. Sec. 1-83(2) (1983), based upon the convenience of witnesses and the ends of justice, is an interlocutory order and not immediately appealable. Furches v. Moore, 48 N.C. App. 430, 269 S.E. 2d 635 (1980); N.C. Gen. Stat. Sec. 7A-27(c) (1983). Following the same rationale, an order granting a motion for a change of venue is interlocutory and not immediately ap-pealable. In this case, the trial court made that ruling and thereafter denied the husband\u2019s motion to stay the proceedings. Procedurally, it is true that this Court, and not the trial court, should have decided whether the order granting a change in venue was interlocutory and not immediately appealable, see Estrada v. Jaques, \u2014 N.C. App. \u2014, 321 S.E. 2d 240 (1984), but the question is moot, since we have now determined that the change in venue was proper.\nB. Child Support\nOn the basis of detailed findings of fact in the trial court\u2019s 13 October 1983 order, we reject the husband\u2019s argument that the evidence was insufficient to support the award of $125.00 per month per child as child support. One of the twenty enumerated findings of fact follows:\n4. Since the last hearing in this matter, the expenses of the children have increased as set out herein. Rent or house payment has increased from $175 to $628 per month. The Plaintiff previously had no household maintenance expenses and now averages $25 per month. Plaintiff\u2019s electric bill has increased from approximately $30 to $80 per month. Plaintiff previously had no homeowner insurance premium and no cablevision and now pays $20 per month homeowners insurance and Cablevision fee. The food expenses for the children have increased from $100 per month to $200 per month. Both children are now in school and hence buy their lunches at school. The cost of school lunch has increased by approximately $.25 per day. The present expense is $32 per month. The clothing expense for the children has increased from $50 to $100 per month. The child care expense has decreased. The children previously had no educational expenses and now have such expense of $10 per month. The plaintiff has paid in excess of $1,100 in orthodontic fees for the children. The children take two music lessons, one of $20 per month and the other of $26 per month. They took neither lesson at the last hearing. One child now plays soccer and did not at the last hearing. This averages $4 per month.\nAlthough there were no findings of fact regarding the needs of the children or the income of the parties in the 1977 consent judgment, and although the parties agreed that $10 per week per child was sufficient, the findings of fact in this case show that there has been a substantial change in circumstances. We uphold the award, subject, however, to the following modification. The record suggests that the trial court only intended to award a total of $250 per month for the time that the children were in the custody of the wife, not for the entire calendar year. At the hearing, the court used the figures of ten and one-half months and two and one-half months which totals thirteen months, not twelve. We find that the order finally entered is contrary to the order discussed in open court.\nC. Loan\nWe also summarily reject the husband\u2019s argument that the evidence was insufficient for the trial court to enter judgment against him in favor of the wife on the $1,000 loan repayment obligation. In the 1977 consent order, the husband agreed to \u201cindemnify and hold harmless the [wife] from any and all claims, demands, obligations, liabilities, damages and debts of the [husband] or incurred by or on behalf of the [husband].\u201d The husband has not denied that the wife was required to make payments on his note when he defaulted, injuring the wife in an amount in excess of $869.80 plus interest. The trial court found as a fact that the husband promised to pay the wife $1,000 as repayment for the damages she had suffered thereby, and we find no error. The husband asserts the three-year contract statute of limitations, N.C. Gen. Stat. Sec. 1-52 (1983), as a bar, but we find the ten-year statute of limitations for judgments, N.C. Gen. Stat. Sec. 1-47 (1983), the applicable statute of limitations.\nD. Attorney\u2019s Fees\nWe do agree with the husband that the trial court erred in awarding attorney\u2019s fees of $450.00 to the wife. We find little evidence that the wife, with income in excess of $32,000 per year, does not have sufficient means to defray the expenses of the suit. More important, the husband was in lawful compliance with the orders of the courts of Rockingham County, both with regard to custody and support of his minor children prior to the modification thereof by the courts of Guilford County. Consequently, we cannot say that the husband refused to provide support which was adequate under the circumstances existing at the time of the institution of the action.\nAs the husband suggests in his brief, we \u201ccannot require any party, at the risk of being ordered to pay attorney\u2019s fees, to anticipate that an order of court, such as this, would be modified. . . .\u201d Equally important in our decision to deny attorney\u2019s fees in this case is the trial court\u2019s failure to make findings on the wife\u2019s lawyer\u2019s skill, hourly rate, its reasonableness in comparison with that of other lawyers, as we required in Falls v. Falls, 52 N.C. App. 203, 278 S.E. 2d 546, disc. rev. denied, 304 N.C. 390, 285 S.E. 2d 831 (1981).\nE. Visitation\nFinally, we summarily reject the husband\u2019s argument that the trial court erred in modifying the previous order of custody by allowing one additional week of custody with the mother during the summer months due to her summer vacation. The court heard the evidence and we find no abuse of discretion.\nModified, affirmed in part and reversed in part.\nJudges Arnold and Wells concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Hatfield & Hatfield, by Kathryn K. Hatfield, for plaintiff ap-pellee.", "Bethea, Robinson, Moore & Sands, by Alexander P. Sands, III, for defendant appellant." ], "corrections": "", "head_matter": "NANCY JONES KENNON v. GEORGE MARION KENNON, JR.\nNo. 8418DC196\n(Filed 28 December 1984)\n1. Venue \u00a7 8\u2014 modification of child support and custody \u2014 change of venue\nThe trial court did not abuse its discretion in allowing plaintiff mother\u2019s motion for a change of venue of a motion to modify child support and custody for the convenience of the witnesses and the ends of justice where both parties had moved to the county to which venue was changed.\n2. Divorce and Alimony \u00a7 24.7\u2014 increase in child support \u2014 change of circumstances\nThe evidence and findings showed a substantial change in circumstances which supported the trial court\u2019s order increasing the father\u2019s child support obligation from $10 per week per child to $125 per month per child.\n3. Judgments \u00a7 SO; Limitation of Actions \u00a7 4.3\u2014 loan repayment obligation \u2014 action on judgment \u2014 statute of limitations\nWhere a consent judgment required the former husband to indemnify and hold harmless the former wife from all claims and debts incurred by or on behalf of the husband, the wife was required to make payments on the husband\u2019s note when he defaulted, and the husband promised to pay the wife $1,000 as repayment for damages she had suffered thereby, the ten-year statute of limitations for judgments, G.S. 1-47, applied to the wife\u2019s action on the husband\u2019s loan repayment obligation, not the three-year contract statute of limitations of G.S. 1-52.\n4. Divorce and Alimony \u00a7 27\u2014 modification of child support and custody \u2014 error in award of attorney fees\nThe trial court erred in awarding attorney fees of $450 to the wife in an action to modify child support and custody where the wife had income in excess of $32,000 per year, the husband was in compliance with the prior support and custody order, and the trial court failed to make findings as to the skill of the wife\u2019s attorney, his hourly rate, and the reasonableness thereof.\n5. Divorce and Alimony \u00a7 25.9\u2014 modification of custody order \u2014 mother\u2019s summer vacation\nThe trial court did not abuse its discretion in modifying a previous custody order by allowing one additional week of custody with the mother during the summer months due to her summer vacation.\nAppeal by defendant from Lowe, Judge. Order entered 13 October 1983 in District Court, GUILFORD County. Heard in the Court of Appeals 13 November 1984.\nHatfield & Hatfield, by Kathryn K. Hatfield, for plaintiff ap-pellee.\nBethea, Robinson, Moore & Sands, by Alexander P. Sands, III, for defendant appellant." }, "file_name": "0161-01", "first_page_order": 187, "last_page_order": 193 }