Walker v. Walker

306 S.E.2d 485, 63 N.C. App. 644, 1983 N.C. App. LEXIS 3178
Court of Appeals of North Carolina·Decided September 6, 1983·No. 8214DC884·Published·Cited by 5 cases

Opinions

EAGLES, Judge.

The defendant first assigns as error the denial of defendant’s 21 May 1982 motion to dismiss. He alleges that the action filed by plaintiff on 16 February 1978, and its subsequent dismissal with prejudice on 19 July 1978, acted as res judicata in the later action filed by plaintiff on 4 March 1982. A prior action concerning child support is res judicata only as long as the circumstances existing at the time of the prior action have remained the same. See Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). “[Neither agreements nor adjudications for the custody or support of a minor child are ever final.” McLeod v. McLeod, 266 N.C. 144, 153, 146 S.E. 2d 65, 71 (1966). We reject defendant’s argument that the doctrine of res judicata applies. We find no error in the denial of defendant’s motion to dismiss.

Defendant next contends that the trial court erred in concluding, as a matter of law, “that the plaintiff is not required to show a substantial change in circumstances in order to modify the separation [sic] but rather, the plaintiff must show the amount reasonably required for the support of the child at the time of this hearing.” The situation here is similar to that dealt with in Williams v. Williams, 261 N.C. 48, 134 S.E. 2d 227 (1964). In both cases, prior to the entry of the order appealed from, the defendant’s child support payments were made under the terms of a separation agreement. Williams held that in such a case “plaintiff’s only burden was to show the amount reasonably required for the support of the children at the time of the hearing. [647] The amount which the parties fixed on June 8, 1962 was merely evidence for the judge to consider, along with all the evidence in the case, in determining a reasonable amount for support of the children.” Id. at 59, 134 S.E. 2d at 235. Plaintiff need not show and the trial court need not make findings concerning the needs of the child at the time the separation agreement was signed. Perry v. Perry, 33 N.C. App. 139, 234 S.E. 2d 449, rev. denied, 292 N.C. 730, 235 S.E. 2d 784 (1977). We, therefore, hold that plaintiff was not required to show a substantial change in circumstances from the time of the separation agreement as justification for an increase in child support payments.

Defendant’s final assignments of error in effect challenge the basis on which the court ordered an increase in defendant’s child support payments. The trial court found as fact that:

11. That at the time of the Separation Agreement, the parties owned a house located at 5500 Old Well Street, Durham, North Carolina. That simultaneously with the execution of the Separation Agreement, Charles F. Walker conveyed his interest in that home to Mary F. Walker. That thereafter, Mary F. Walker was forced to sell the home and now resides in an apartment.
16. The plaintiff has the following reasonable monthly expenses necessary for the support of one minor child:
Rent $150.00
Electricity 32.50
Telephone 15.00
Cable TV 8.33
Home Repairs 2.50
Newspapers & Magazines 1.25
Drycleaning & Laundry 10.00
Education 5.00
Church 2.00
Transportation 146.98
Groceries (Home) 125.00
Food (Away) 5.00
School Lunches 13.00
Clothing 40.00
[648] Personal Items — 5.00
Recreation — 20.00
Medical & Dental — 20.00
Gifts (Christmas & Birthdays) — 43.49
Total $645.00
17. That the defendant has submitted to the Court an affidavit showing his monthly expenses, which he alleges total $2,252.12. These expenses include a mortgage payment of $622.19 for a four bedroom house in which he is the sole occupant; a payment of $100.00 per month for an insert for his fireplace; an average monthly electricity bill of $108.00; and NCNB Bank Americard Bill of $100.00 monthly. The Court finds that the defendant Walker has voluntarily undertaken unreasonable expenses to the detriment of his ability to support his minor child.
18. That the plaintiff has a net monthly income of $836.00 and reasonable monthly expenses of $645.00. Plaintiff is employed by the Durham County Schools in the capacity of teach [sic] of Physical Education.
19. That based on parties income and reasonable expenses, and the needs of the child for health, education and maintenance in the accustomed standard of living of the child and the parties, the homemaker contribution of the plaintiff, this Court determines that the defendant should pay 60% of the reasonable needs of the child or $387.00 and the plaintiff should bear the remaining 40%.
20. That the plaintiff provides the following homemaking services for the minor child:
Activity Hours
Cooking r“i
Cleaning t — I
Laundry
Shopping
Tutoring
Nurse
Chauffeur
Dietitian
[649] Dishwasher LO
Child Care 00 T — I
Family Counseling LO CO
Seamstress © rH
21. The defendant provides no homemaking contribution for the minor child.
23. The Court takes judicial notice of the substantial increase in the costs of raising a child caused by inflation.
25. The Court finds as a fact that the plaintiff is in need of financial assistance from defendant father for the partial support of the child. And that he is capable of providing such support.

The Court then concluded as a matter of law that:

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Walker v. Walker, 306 S.E.2d 485, 63 N.C. App. 644, 1983 N.C. App. LEXIS 3178 (N.C. Ct. App. 1983).

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