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  "name": "GARY JAMES BOTTOMLEY v. LOIS SHEPHERD BOTTOMLEY",
  "name_abbreviation": "Bottomley v. Bottomley",
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    "judges": [
      "Judges Webb and Johnson concur."
    ],
    "parties": [
      "GARY JAMES BOTTOMLEY v. LOIS SHEPHERD BOTTOMLEY"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nI.\n\u201cAny parent . . . having custody of a minor child, or bringing an action or proceeding for the custody of such child\u201d may institute an action for child support. N.C. Gen. Stat. 5043.4(a). Such an action may be maintained by motion in the cause in an action for divorce. N.C. Gen. Stat. 5043.5(b)(5). Thus, plaintiff-husband, as a parent seeking custody in this proceeding, could seek to have his child support obligation determined through a motion in the cause in the divorce action. He was not precluded from doing so by the fact that the court had not previously entered orders in that action relating to child support.\nII.\nDefendant-wife contends the court erred in finding that, notwithstanding the Separation Agreement, it could make \u201cits own independent determination of what is fair and reasonable child support in this case.\u201d We disagree.\n\u201cIt is settled that any separation agreement dealing with the custody and the support of the children of the parties cannot deprive the court of its inherent as well as statutory authority to protect the interests of and provide for the welfare of minors.\u201d McKaughn v. McKaughn, 29 N.C. App. 702, 704, 225 S.E. 2d 616, 618 (1976), citing 2 R. Lee, North Carolina Family Law Sec. 190 (1963). While in the usual case the custodial parent obtains an increase in the agreed-upon support, see, e.g., Fuchs v. Fuchs, 260 N.C. 635, 133 S.E. 2d 487 (1963), this Court has upheld an order setting a lesser amount than that provided for by the applicable separation agreement. McKaughn, supra. The Court stated: \u201cThe judgment in this case does not change plaintiffs contractual obligations under the separation agreement. The question before the court was what amount it would require in the exercise of its inherent and statutory authority to provide for the welfare of minors.\u201d Id. at 706, 225 S.E. 2d at 619.\nWe find McKaughn controlling and hold, pursuant thereto, that the court here had authority to order child support in a lesser sum than that provided for in the parties\u2019 separation agreement. We are not persuaded by defendant-wife\u2019s argument that McKaughn, should be limited to its particular facts which are not present here, viz, \u201cdrastically changed circumstances making it impossible for the husband to comply with the separation agreement.\u201d Rather, while the court could not relieve plaintiff-husband of any contractual obligation he assumed to support his child in excess of what the law would require \u2014 Harding v. Harding, 29 N.C. App. 633, 639, 225 S.E. 2d 590, 594 (1976); McKaughn, supra \u2014 it could, \u201cin the exercise of its inherent and statutory authority to provide for the welfare of minors,\u201d order payment of an amount either larger or smaller than that provided for in the agreement. McKaughn, 29 N.C. App. at 706, 225 S.E. 2d at 619. That amount should be \u201ca reasonable subsistence, to be determined by the trial judge in the exercise of a sound judicial discretion from the evidence before him. His determination . . . will not be disturbed in the absence of a clear abuse of discretion.\u201d Beall v. Beall, 290 N.C. 669, 673-74, 228 S.E. 2d 407, 410 (1976).\nThe effect of such an order is not to deprive defendant-wife of her contractual right to recover the sums provided for in the agreement, McKaughn, supra, but to limit her contempt remedy to the sums provided for by the court order.\nAlthough a court may increase or decrease its own prior award for the support of a minor child, a court cannot intervene to reduce or relieve a parent from his contractual obligations to support his child in excess of that required by law. A parent can by contract assume a greater obligation to his child than the law imposes. Thus, if the court allows the child\u2019s [custodial parent] less money for support for [the] child than does the valid separation agreement between the child\u2019s parents, the remedy of the [custodial parent] is to sue the [non-custodial parent] for breach of contract and obtain a judgment for the difference. The [non-custodial parent\u2019s] duty under the court order may be enforced by contempt proceedings, while his [or her] contractual obligations may not be so enforced.\n3 R. Lee, North Carolina Family Law Sec. 229 at 139 (4th ed. 1981) (emphasis supplied).\nIII.\nDefendant-wife further contends the court erred in finding that the agreed-upon amount of support was excessive and that the sum of $1,000 per month \u201cis a generous and adequate amount of child support.\u201d We hold that the portion of the order setting child support is not based on sufficient findings of fact to allow effective appellate review.\nThis Court has stated:\nOur 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 needs 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 . . . 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.\nNewman v. Newman, 64 N.C. App. 125, 127-28, 306 S.E. 2d 540, 542, disc. rev. denied, 309 N.C. 822, 310 S.E. 2d 351 (1983). Our Supreme Court has set forth the rationale for requiring specific findings as follows:\nEffective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order\u2019s rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence; each link in the chain of reasoning must appear in the order itself. Where there is a gap, it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.\nCoble v. Coble, 300 N.C. 708, 714, 268 S.E. 2d 185, 190 (1980).\nJudged by the standard of these cases and the authorities cited therein, the order here is altogether deficient. It contains findings only as to the expenses for the child claimed in defendant-wife\u2019s affidavit which the court considered excessive. It contains no findings as to the child\u2019s actual past expenditures and present reasonable expenses. Newman, supra. While it contains findings as to the parents\u2019 incomes, it contains no findings as to their estates and present reasonable expenses so as to determine their relative ability to pay. Id. It thus \u201ccannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.\u201d Coble, supra.\nIV.\nFor the reasons stated, we affirm the order insofar as it finds that the trial court was not \u201cbound by the figures set in the separation agreement, and [could make] its own independent determination of what is fair and reasonable child support in this case.\u201d The order is otherwise vacated, and the cause is remanded for entry of an appropriate order containing findings that accord with the requirements articulated in Coble, supra, and Newman, supra.\nAffirmed in part, vacated in part, and remanded.\nJudges Webb and Johnson concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Ferree, Cunningham, & Gray, P.A., by George G. Cunningham, for plaintiff appellee.",
      "Vannoy & Reeves, by Jimmy D. Reeves, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "GARY JAMES BOTTOMLEY v. LOIS SHEPHERD BOTTOMLEY\nNo. 8623DC15\n(Filed 5 August 1986)\n1. Husband and Wife \u00a7 11.1\u2014 separation agreement \u2014 court\u2019s reduction in child support \u2014 effect\nThe trial court had authority to order child support in a lesser sum than that provided for in the parties\u2019 separation agreement, but the effect of such an order was not to deprive defendant wife of her contractual right to recover the sums provided for in the agreement.\n2. Husband and Wife \u00a7 11.1\u2014 separation agreement \u2014 child support \u2014 court\u2019s reduction not supported by evidence\nThe trial court\u2019s findings of fact were insufficient to support its conclusion that the parties\u2019 agreed upon amount of child support was excessive and that the sum of $1,000 per month was \u201ca generous and adequate amount of child support,\u201d since the court\u2019s order contained findings only as to the expenses for the child claimed in defendant wife\u2019s affidavit which the court considered excessive but contained no findings as to the child\u2019s actual past expenditures and present reasonable expenses, and contained findings as to the parents\u2019 incomes, but contained no findings as to their estates and present reasonable expenses so as to determine their relative ability to pay.\nAPPEAL by defendant from Osborne, Judge. Order entered 1 October 1985 in District Court, WILKES County. Heard in the Court of Appeals 8 May 1986.\nPlaintiff-husband and defendant-wife separated on 21 July 1983. They entered a Separation Agreement on 6 October 1983 and were divorced on 21 August 1984.\nThe Separation Agreement gave defendant-wife custody of the minor child born of the marriage, subject to reasonable visitation with plaintiff-husband. It further provided that plaintiff-husband would pay to defendant-wife the sum of $1,650 per month as support for the child. This sum represented twenty-seven percent of plaintiff-husband\u2019s then net monthly income. If his net monthly income changed, the payments were to continue in a sum equal to twenty-seven percent of his net monthly income. When this matter was heard, that sum was in excess of $1,700 per month.\nThe Separation Agreement was not incorporated into or made a part of the divorce judgment or any other court order. The parties have not heretofore been in court on the issues of child custody and support.\nOn 3 July 1985 plaintiff-husband filed in the District Court of Wilkes County a document captioned \u201cMotion.\u201d While the record does not contain the parties\u2019 divorce judgment, it is apparent from the case number and the transcript that the document was filed in the parties\u2019 divorce action. The document alleged the parties\u2019 marriage, their divorce, and the birth of their minor child. It alleged \u201c[t]hat the Court has not heretofore heard evidence and judicially determined matters involving custody, support and visitation involving the parties\u2019 minor child.\u201d It then alleged that the parties had entered the Separation Agreement and that subsequent thereto there had been \u201ca significant change of circumstances regarding the parties and their minor child and that it would be in the best interest of the minor child if the Court were to review this matter and enter appropriate orders regarding custody, support and visitation.\u201d The specific change of circumstances alleged was that the child was spending longer periods of time with plaintiff-husband. Plaintiff-husband prayed that he be awarded principal custody of the child and that \u201cthe Court review the matter involving child support and enter an appropriate order of support.\u201d\nThe trial court held two hearings and, with the consent of the parties, talked privately with the minor child. It then found that it would be in the best interest of the child that principal custody remain with defendant-wife, and it so ordered. Plaintiff-husband does not appeal from this portion of the order.\nThe court further found that defendant-wife had submitted monthly child support expenses totaling $1,955, but that \u201csuch figure is excessive and is far beyond the actual needs of the child.\u201d The order specifies the items in defendant-wife\u2019s affidavit on child support expenses that the court found unnecessary or excessive. It further contains the following:\n[Plaintiff-husband] is financially able to comply with the terms of the separation agreement. The Court does give some weight to the separation agreement . . . but . . . finds that the amount of child support as set in the . . . agreement is far in excess of the reasonable needs of the minor child, and although it does contribute in general to the lifestyle of the mother, the Court does not consider itself bound by the figures set in the . . . agreement, and therefore, makes its own independent determination of what is fair and reasonable child support in this case.\nThe Court finds that the figures submitted by the mother as reasonable expenses are not only excessive, but . . . overlook the ability of the mother to share in some part in providing support for said minor.\nThe Court finds in taking into consideration all of the above factors that $1,000 per month ... is a generous and adequate amount of child support, consistent with the lifestyle of the parties.\nThe court ordered plaintiff-husband to pay defendant-wife the sum of $1,000 per month child support and to \u201cbe responsible for paying all medical or dental bills incurred by said minor child which are not covered by any insurance.\u201d Defendant-wife excepted to the foregoing findings and appeals.\nFerree, Cunningham, & Gray, P.A., by George G. Cunningham, for plaintiff appellee.\nVannoy & Reeves, by Jimmy D. Reeves, for defendant appellant.\n. Both parties are executive officers at Holly Farms Poultry Industries in Wilkesboro. Plaintiff-husband has a gross income of approximately $140,000 per year and his monthly \u201ctake-home\u201d pay was approximately $6,500 at the time of these hearings. Defendant-wife has a gross income of approximately $75,000 per year and her \u201ctake-home\u201d pay was approximately $3,500 per month at the time of these hearings."
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