County of Stanislaus v. Ross

255 S.E.2d 229 (1979)

41 N.C. App. 518

The COUNTY OF STANISLAUS v. Harry Wesley ROSS, Jr.

No. 781DC768.

Court of Appeals of North Carolina.

June 5, 1979.

*230 Atty. Gen. Rufus L. Edmisten by Associate Attys. Gen. Henry H. Burgwyn and R. James Lore, Raleigh, for plaintiff-appellee.

Aldridge & Seawell by G. Irvin Aldridge, Manteo, for defendant-appellant.

MITCHELL, Judge.

The defendant first assigns as error the trial court's denial of his motion to *231 dismiss for failure to state a claim upon which relief can be granted. In support of this assignment, the defendant contends that the motion should have been granted because the complaint fails to state where he was employed or the amount of his earnings. We do not agree. The Uniform Reciprocal Enforcement of Support Act requires that the plaintiff's complaint "state the name and, so far as known to the plaintiff, the address and circumstances of the defendant and his dependents for whom support is sought and all other pertinent information." G.S. 52A-10. The complaint may, but is not required to, contain the name of the defendant's employer. As the complaint contained the name, address and circumstances of the defendant, as well as allegations that the plaintiff was entitled to child support payments from the defendant, it was not made defective by its failure to contain the name of the defendant's employer or the amount of the defendant's earnings.

The defendant further contends that the complaint failed to state a claim upon which relief could be granted because it did not allege a substantial change in circumstances. The defendant refers us to Childers v. Childers, 19 N.C.App. 220, 198 S.E.2d 485 (1973), as authority for this contention.

The facts in the present case are distinguishable from those in Childers, and we do not find that case applicable. Unlike the situation in Childers, this case does not involve an action pursuant to G.S. 50-13.7 for an order which "modifies or supersedes" a prior order. Although the record indicates that a prior judgment was entered in California in 1964 requiring the defendant to pay $50 per month child support, that action was apparently initiated against the defendant by the mother of his minor child Suzanne Gail Ross. The present action, on the other hand, is an original action brought by the County of Stanislaus against the defendant and is independent of all other previous actions. The legislature apparently foresaw and provided for just such situations when it enacted G.S. 52A-21 which provides that "A support order made by a court of this State pursuant to [the Uniform Reciprocal Enforcement of Support Act] does not nullify and is not nullified by a support order made by a court . . . of any other state pursuant to a substantially similar act or any other law regardless of priority of issuance, unless otherwise specifically provided by the court." In such situations, that statute further provides for credits for payments pursuant to one support order against amounts owed pursuant to the other. The legislature apparently intended that its enactment of G.S. 52A-21, after our opinion in Childers, would provide authority to the courts of this State to apply the Uniform Reciprocal Enforcement of Support Act so as to provide for the support of a minor child independent of and without regard for any other support judgments or whether there had been a change in the circumstances of either the child or its parents. Therefore, it was not necessary that the complaint in the present case contain allegations of facts constituting changed circumstances. Additionally, we find this view consistent with the legislative intent that the remedies provided by the act be "in addition to and not in substitution for any other remedies" and that the act "be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states having a substantially similar act." G.S. 52A-4; G.S. 52A-32. For the reasons previously discussed, this assignment of error is overruled.

The defendant next assigns as error the trial court's findings of fact. He contends that those findings are not supported by the evidence. The defendant further contends that no evidence was presented for the plaintiff county. In an action brought under the Uniform Reciprocal Enforcement of Support Act, the complaint is "admissible as prima facie evidence of the facts therein stated . . .." G.S. 52A-19. In the present case, the record on appeal clearly reflects that the complaint was introduced as evidence on behalf of the plaintiff county. Each of the trial court's findings of fact are supported by allegations *232 of fact set forth in the complaint. Therefore, those findings of fact are supported by competent evidence. This assignment of error is overruled.

The defendant next contends that the trial court erred in concluding that the defendant owed a duty of support. The trial court found that the defendant was the father of the child for whom support was sought. That finding was supported by competent evidence. A father owes a duty to support his minor child. G.S. 50-13.4(b); Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976). Therefore, the trial court did not err in its conclusion and the defendant's assignment of error is overruled.

The defendant further assigns as error the trial court's conclusion that he has sufficient earning capacity to enable him to pay support in the amount of $200 per month. He concedes in his brief that the complaint is sufficient to establish the child's needs, but contends that the evidence fails to show his ability to meet those needs. We do not agree.

The defendant's evidence supported the trial court's findings that his income is $1,700 per month and his expenses are $1,710 per month. These facts as found by the trial court do not reveal that the defendant is unable to pay $200 per month in child support; they merely tend to show that he cannot pay $200 per month and continue to maintain his present life-style. The defendant's evidence indicated that his expenses included among other things $100 per month for clothing, $183 per month for car payments, $100 per month for truck payments, $100 per month for automobile expenses, $90 per month for payments on a loan, and $341 per month for payments on a mortgage. If by reason of the trial court's judgment the defendant is required to survive with less clothing, less convenient transportation or less desirable housing, then so be it. He may not avoid his duty to support his minor child simply by spending all of the money he earns. The defendant must share his earnings with his minor child to the end that each may have a reasonable amount for support, with the minor child's reasonable needs for food, clothing and shelter taking priority. Absent extraordinary circumstances not presented by the facts of the present case, evidence that a defendant has an income of $1,700 per month, or substantially less for that matter, will be considered sufficient to support the trial court's conclusion that he has sufficient earning capacity to enable him to support his minor child in the amount of $200 per month. This assignment is without merit and is overruled.

The defendant has presented additional assignments of error. We find them without merit.

The judgment of the trial court must be and is hereby

Affirmed.

PARKER and HARRY C. MARTIN, JJ., concur.