Goodhouse v. DeFravio

290 S.E.2d 751 (1982)

Cynthia W. GOODHOUSE (formerly DeFravio) v. David DeFRAVIO.

No. 8126DC765.

Court of Appeals of North Carolina.

May 4, 1982.

*753 James, McElroy & Diehl by William K. Diehl, Jr., Charlotte, for plaintiff-appellee.

Cannon & Basinger by Thomas R. Cannon, Charlotte, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant contends that the trial court erred in denying his motion to reduce child support payments, in holding defendant in contempt, and in awarding plaintiff counsel fees.

It is established law in North Carolina that the court's findings of fact are conclusive if supported by any competent evidence and the judgment will be affirmed if the findings support the conclusions and judgment entered thereon. In re Williamson, 32 N.C.App. 616, 233 S.E.2d 677 (1977). A careful reading of the record discloses that the evidence fully supports the findings of fact recited in the 13 February 1981 order.

The court based its conclusions of law upon a two-part inquiry: defendant's voluntary choice to reduce income and his deliberate attempt to avoid responsibilities to his daughter which was not done in good faith.

Whether the court's findings of fact support its conclusions of law requires a reading of the applicable statutes. N.C. G.S. 50-13.7(a) (Supp.1981) provides the procedural mechanism permitting modification, as follows: "An order of a court of this State for support of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." In Gilmore v. Gilmore, 42 N.C.App. 560, 257 S.E.2d 116 (1979), it was held that the changed circumstances with which the courts are concerned are those which relate to child-oriented expenses. In Daniels v. Hatcher, 46 N.C.App. 481, 265 S.E.2d 429, cert. denied, 301 N.C. 87 (1980), it was held that the court must make findings as to the relative abilities of the parties to provide support before ordering a change in the amount of support payments. See also Ebron v. Ebron, 40 N.C.App. 270, 252 S.E.2d 235 (1979). Inevitably we are led to those considerations which gave rise to the award of child support in the first instance, as set forth in N.C.G.S. 50-13.4(c) (Supp.1981):

Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable 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.

Thus, it has been held under both N.C.G.S. 50-13.4 and 50-13.7 that a husband's ability to pay child support is normally determined by his actual income at the time the award is made or modified. If, however, there is a finding that the husband is deliberately depressing his income or otherwise acting in deliberate disregard of his obligation to provide reasonable support for his child, his capacity to earn may be made the basis of the award. Under these circumstances, his motion to reduce the amount of child support will be denied. See Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Whitley v. Whitley, 46 N.C.App. 810, 266 S.E.2d 23 (1980); Wachacha v. Wachacha, 38 N.C. App. 504, 248 S.E.2d 375 (1978). The "imposition *754 of the earnings capacity rule must be based on evidence that tends to show the husband's actions resulting in reduction of his income were not taken in `good faith.'" 38 N.C.App. at 509, 248 S.E.2d at 378.

On the record before us, we find sufficient evidence to support the trial court's conclusion "that Defendant has deliberately attempted to avoid his financial responsibilities to his daughter and that he has not acted in good faith." Defendant is apparently an astute businessman. It was within his means, even upon his decision to forego all employment and become a full-time student, to provide adequately for his daughter under the terms of the April 1978 order. This he chose not to do. The trial court acted within its discretion in denying defendant's motion to reduce the support payments.

We agree with the trial court's conclusion that "Defendant has had at all times, and presently has the ability and capability of liquidating the outstanding child support arrearage of $4,000 and in paying Plaintiff's attorney." Defendant testified that in June of 1980 his net worth was almost $65,000. Defendant has $2,500 in an IRA account, owns furniture and other assets worth $17,500, and is the holder of notes totalling an amount of $40,000. In February of 1980, when defendant was paying reduced child support, the total assets of his company (his interest in which he sold shortly thereafter for $10,000) amounted to over one million dollars. Defendant's failure to pay the arrearage was willful. Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966).

Affirmed.

ROBERT M. MARTIN and WHICHARD, JJ., concur.