Andrews v. Andrews

719 S.E.2d 128, 217 N.C. App. 154, 2011 N.C. App. LEXIS 2342
CourtCourt of Appeals of North Carolina
DecidedNovember 15, 2011
DocketNo. COA11-433
StatusPublished
Cited by1 cases

This text of 719 S.E.2d 128 (Andrews v. Andrews) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. Andrews, 719 S.E.2d 128, 217 N.C. App. 154, 2011 N.C. App. LEXIS 2342 (N.C. Ct. App. 2011).

Opinion

HUNTER, Robert C., Judge.

Becky Andrews (now Wood) (“defendant”) appeals from the trial court’s order modifying the child support obligation of her former husband, John Andrews (“plaintiff’). After careful review, we reverse the trial court’s order.

Background

Plaintiff and defendant were married in 1994 and have two children resulting from their marriage. In 2001, the parties separated and, on 6 November 2002 nunc pro tunc to 1 July 2002, entered into a consent order granting primary physical custody of the children to defendant and secondary custody, with visitation rights, to plaintiff. The consent order also required plaintiff to pay $1,496.75 per month in child support, and to maintain health, dental, and vision insurance for the benefit of their minor children, including payment of the insurance premiums and all health care expenses not covered or reimbursed by their insurance policies.

Plaintiff’s child support obligation under the consent order was calculated in accordance with the North Carolina Child Support Guide[155]*155lines (the “Guidelines”). At the time of the consent order, in 2002, plaintiff was employed as an engineer and earned approximately $105,000 annually. In 2004, plaintiff changed jobs, accepting a position as an engineer at EMC Corporation (“EMC”) where his salary increased to approximately $172,000 in 2009. EMC also provided plaintiff with benefits such as health insurance.

In March 2010, plaintiff voluntarily resigned from his position at EMC, and did so without having secured other employment. In his exit interview at EMC, plaintiff stated that he was resigning in order to follow Jesus Christ. At the time of his resignation, plaintiff intended to start a church, but the church was not yet incorporated and there was no paid position to accept. Consequently, the prospective members of the church made a “love offering” of $1,000 to sustain plaintiff until payment of his salary could begin.

In mid-May, New Beginnings Chapel was established in Raleigh, North Carolina (“New Beginnings”) and plaintiff accepted a position with the church as the senior pastor. Plaintiffs annual salary at New Beginnings is $52,800. New Beginnings does not provide plaintiff with health insurance. Consequently, plaintiffs premiums for health and dental insurance have approximately doubled while his income has been reduced by approximately 70%.

On 14 May 2010, plaintiff filed a motion to modify his child support obligation. Plaintiffs motion alleged there had been a substantial change in circumstances warranting a modification of his child support obligation under the parties’ 2002 consent order. Plaintiff alleged the substantial change in circumstances on the basis that more than three years had passed since entry of the parties’ consent order, and that there would be a 15% deviation between the amount of child support due under the consent order and the amount that would result from application of the Guidelines to the parties’ current earnings.

Defendant moved to dismiss plaintiff’s motion for failure to state a claim for which relief could be granted, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Specifically, defendant argued plaintiff failed to allege a substantial change in circumstances that warranted modification of the child support order.

At a hearing on the motions, plaintiff testified that he could no longer maintain his child support obligation as required under the parties’ consent order. When plaintiff was asked if he considered his child support obligation when he quit his job at EMC, he replied, “When I [156]*156considered leaving EMC my consideration was following Christ and that was all, my obedience to him.”

The trial court denied defendant’s motion to dismiss and entered an order reducing plaintiff’s child support obligation from $1,496.75 per month to $873.75 per month. In its order, the trial court found, inter alia, that despite plaintiff’s voluntary resignation, there was “no evidence of bad faith or an intentional disregard to his family and child support obligations.” The trial court concluded, as a matter of law: that there was sufficient evidence to establish a presumption of a substantial change in circumstances based on the parties’ current incomes and that the presumption warranted a modification to the existing child support order; that no request for a deviation from the Guidelines had been made and no evidence was offered of circumstances which could justify deviation; and that despite plaintiff’s voluntary resignation from his job at EMC, plaintiff did so in good faith and without a disregard to his child support obligations. Defendant appeals from this order.

Discussion

Initially, we note defendant’s frequent citation to unpublished opinions of this Court. With limited exceptions, the use of unpublished opinions is disfavored. Our Rules of Appellate Procedure permit such use to establish claim preclusion, issue preclusion, or the law of the case, or when “there is no published opinion that would serve as well.” N.C. R. App. 30(e)(3) (2011). In the present case, the extensive use of unpublished opinions was not warranted and we have not considered those opinions in our analysis.

Defendant argues the trial court erred in modifying plaintiff’s child support obligation despite evidence that plaintiff voluntarily quit his job without giving consideration to how he would meet his child support obligation required by the parties’ consent order. We agree.

A trial court’s award of child support will not be disturbed on appeal unless it is shown the decision was the result of an abuse of discretion. Evans v. Craddock, 61 N.C. App. 438, 440-41, 300 S.E.2d 908, 910 (1983). If the decision is supported by competent evidence, the decision will not be disturbed even if the record contains conflicting evidence. Id. Absent an abuse of discretion, however, “an error in law arising from the misapprehension of the appropriate legal standard by the trial court is nonetheless reviewable on appeal.” Anuforo v. Dennie, 119 N.C. App. 359, 361, 458 S.E.2d 523, 525 (1995).

[157]*157A child support order entered by a court of this State “may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances.” N.C. Gen. Stat. § 50~13.7(a) (2009). Our case law has interpreted this standard to require a showing of a “substantial change in circumstances affecting the welfare of the child.” Askew v. Askew, 119 N.C. App. 242, 244, 458 S.E.2d 217, 219 (1995). Plaintiff sought a modification of his child support obligation based on the presumption that a substantial change in circumstances had occurred because the parties’ consent order was more than three years old and the amount of the child support obligation under that order would be at least 15% greater than an award calculated under the Guidelines applied to the parties’ current earnings. See 2008 Ann. R. N.C. 52 (providing that the modification of a child support order may be based on the presumption of a substantial change in circumstances and providing the requirements to establish the presumption); Garrison v. Connor, 122 N.C. App. 702, 705-06,

Related

In re: A.C.
786 S.E.2d 728 (Court of Appeals of North Carolina, 2016)

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Bluebook (online)
719 S.E.2d 128, 217 N.C. App. 154, 2011 N.C. App. LEXIS 2342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-andrews-ncctapp-2011.