dissenting.
I believe the Court of Appeals erred in affirming the trial court’s order directing that the defendant pay “past-due” child support of $100 per month per child for two children from March 1987 to March 1989. The applicable statute expressly provides that: “Each past due child support payment is vested when it accrues and may not thereafter be vacated, reduced, or otherwise modified in any way for any reason in this State or any other state. . . .” N.C.G.S. § 50-13.10(a) (1987) (emphasis added). Other courts which have considered the issue have disallowed retroactive modification of court-ordered child support. See Emile F. Short, Annotation, Retrospective Increase in Allowance for Alimony, Separate Maintenance, or Support, 52 A.L.R.3d 156 (1973). Our statute, *601N.C.G.S. § 50-13.10, requires the same result. Further, even before the most recent modification of that statute, North Carolina law provided that where, as here, parties have entered into a consent order providing for the custody and support of their children, any modification of such order must be based upon a showing of substantial change in circumstances affecting the welfare of the children. Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277 (1986). No such showing or finding of a substantial change was made in this case.
Further, the defendant in the present case paid each child support payment as it became due and vested. When the trial court entered its order modifying the defendant’s obligation for child support, it was faced with a situation in which neither any arrearages nor any past-due child support payments were involved. The defendant had fully complied with the earlier order for child support and had made each child support payment when it became due and vested. Therefore, the trial court was without authority to retroactively modify its earlier order of child support. See id.; see generally Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).
I believe the Court of Appeals also erred in affirming the trial court’s award of attorney’s fees in this case. Before a trial court may award attorney’s fees in a support action, there must be evidence and the court must find that the party ordered to furnish support refused to provide support which was adequate under the circumstances at the time the action was instituted. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980); N.C.G.S. § 50-13.6 (1987). Here, the trial court failed to find the amount of support which was adequate at the time the action was instituted. At the time this action was instituted, the defendant had all of the children of his marriage to the plaintiff in his care and custody. No evidence tends to show that the defendant failed to provide adequate support or that he had any obligation to pay the plaintiff any amount for child support at the time the action was instituted. Therefore, the trial court erred in ordering the defendant to pay the plaintiff’s attorney’s fees.
For the foregoing reasons, I dissent from the decision of the majority affirming the decision of the Court of Appeals.
Justices MEYER and MARTIN join in this dissenting opinion.