Allen v. Allen

173 S.E.2d 10 (1970)

7 N.C. App. 555

Barbara W. ALLEN v. Milton B. ALLEN.

No. 7014DC129.

Court of Appeals of North Carolina.

April 1, 1970.

*11 Newsom, Graham, Strayhorn & Hedrick, by Ralph N. Strayhorn and E. C. Bryson, Jr., Durham, for plaintiff appellant.

Norman E. Williams, Durham, for defendant appellee.

VAUGHN, Judge.

A court order affecting the custody or 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. G.S. § 50-13.7(a). The original decree ordering the payment of money is an adjudication of the court as to what was reasonable and proper at the time it was made. The burden of proving, by preponderance of the evidence, that a material change in the circumstances has occurred, is upon the party requesting the modification. 2 Lee, N.C. Family Law, § 153, p. 230.

The court's findings of fact are conclusive if supported by any competent evidence and a judgment supported by such findings will be affirmed. 1 Strong, N.C. Index 2d, Appeal and Error, § 57, p. 223. Plaintiff contends that so much of the following finding of fact as appears in brackets is not supported by the evidence.

"3. That the defendant, Milton B. Allen, has an income of about Sixty-One Hundred ($6,100.00) Dollars per year after deductions and [the Court concludes that the Twenty-Two and 50/100 ($22.50) Dollars per week payment will be a fair and equitable amount to allot for the support of his minor child, Anna Maria Allen, and at the time will not increase the amount of weekly support in that plaintiff in this action has an income of approximately Eleven Hundred and no/100 ($1,100.00) Dollars each month after deductions over and above *12 any money paid in by Milton B. Allen, the defendant];"

Insofar as the exception relates to the income of the plaintiff, it is well taken. The only evidence relating to funds received by the plaintiff, other than those paid by defendant, tends to show: that from a gross $140.00 per week, her weekly take home pay is $105.83; that she receives $300.00 per month from Dan K. Edwards and that she receives between four and five hundred dollars each year from her father. It is evident, therefore, that the finding, "* * * that plaintiff * * * has an income of approximately Eleven Hundred and no/100 ($1,100.00) Dollars each month after deductions over and above any money paid by the defendant * * *" is not supported by evidence.

Ordinarily, when the findings which are supported by competent evidence are sufficient to support the judgment, the judgment will not be disturbed because another finding which does not affect the conclusions is not supported by the evidence. King v. Insurance Company, 258 N.C. 432, 128 S.E.2d 849. Here, however, we cannot say that the erroneous calculation did not affect the actions of the trial judge when he declined to increase the weekly payments of the defendant.

All the other findings of fact, properly excepted to, are supported by competent evidence and will not be disturbed. Plaintiff's remaining assignments of error are overruled.

We do not suggest that the trial judge should have ordered or abused his discretion when he declined to order an increase in defendant's payments, especially in view of defendant's earnings. It is well settled that the amount which a father should pay for the support of his child is a matter for the trial judge's determination, reviewable only in case of an abuse of discretion. Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649. Here, however, the exercise of such discretion was based in part on a material finding of fact not supported by the evidence. The order appealed from is vacated and the cause is remanded for proper findings and determination pursuant to law.

Vacated and remanded.

MALLARD, C. J., and MORRIS, J., concur.