Thomas v. Thomas

Judge Greene

dissenting in part.

In this case, an order was entered in 1986 directing Defendant to pay child support to Plaintiff. At that time, Defendant’s gross annual income was approximately $150,000.00. On 14 May 1997, Plaintiff filed a motion in the cause requesting the 1986 order be modified to increase the child support payments. In support of the motion, Plaintiff alleged Defendant’s income had “increased significantly.”

After a hearing on the motion, the trial court first determined that there had “been a substantial change in circumstances such that it was appropriate ... to modify the prior” court order of child support. *598In support of this determination, there is evidence in the record and the trial court found that Defendant’s gross annual income had increased to $273,351.00. This evidence and finding is sufficient to support the conclusion that there has been a substantial change of circumstances within the meaning of N.C. Gen. Stat. § 50-13.7, even in the absence of any showing that the needs of the children have changed.1 3 Suzanne Reynolds, Lee on North Carolina Family Law § 229, at 190 (Supp. 1997) (“[A] modification may occur upon a showing of a change in circumstances relating to the ability of the parents to pay support without regard to any change in the needs of the child.”); Padilla v. Lusth, 118 N.C. App. 709, 713, 457 S.E.2d 319, 321 (1995) (child support order can be modified upon showing that there has been “a change in the supporting party’s circumstances”). On this point, I therefore disagree with the majority and would not permit reconsideration of this question on remand.

Having determined there existed a substantial change of circumstances, the trial court then proceeded to set the amount of child support. Because this was not a Guidelines case,2 the trial court was required to set support in an amount “to meet the reasonable needs of the child[ren] for health, education, and maintenance, having due *599regard to the estates, earnings, conditions, accustomed standard of living of the child[ren] and the parties, the child care and homemaker contributions of each party.” N.C.G.S. § 50-13.4(c) (Supp. 1998). There is no evidence and no finding in this record regarding the reasonable needs of the children and for this reason, I agree the order of support must be reversed and remanded. On remand, the trial court must take new evidence as may be offered by the parties regarding the reasonable needs of the children and enter a new order setting the amount of child support. See Ingle v. Ingle, 53 N.C. App. 227, 232, 280 S.E.2d 460, 463 (1981).

I fully agree with the majority on the award of attorney’s fees. The lack of findings by the trial court requires this matter likewise be reversed and remanded.

. In holding that an increase in the supporting parent’s income cannot alone constitute a changed circumstance, I believe the majority misreads our case law. For example, the Greer opinion does nothing more than restate the general principle that evidence of a change in the needs of the children is necessary in order to constitute a change in circumstances sufficient to modify a child support order. More recent cases from this Court have made it clear that a change in the ability of the parents to pay support is also a changed circumstance. See Pittman v. Pittman, 114 N.C. App. 808, 810, 443 S.E.2d 96, 97 (1994); Padilla v. Lusth, 118 N.C. App. 709, 713, 457 S.E.2d 319, 321 (1995). Although the reported cases, for the most part, involve decreases in parental income, the language does not limit its application to decreases and is indeed broad enough to cover both increases and decreases in parental income. See Gibson v. Gibson, 24 N.C. App. 520, 523, 211 S.E.2d 522, 524 (1975) (supporting parent’s increase in income was a fact properly used to justify increase in child support). Furthermore, there can be no justification for permitting a non-custodial supporting parent to seek reduction of his child support obligation based on his reduced earnings and at the same time prohibiting a custodial recipient parent from seeking increased child support based on an increase in the supporting parent’s income. Finally, if the Guidelines are applicable, because determination of child support does not now require a determination of the needs of the child and is based primarily on the incomes of the parties, any substantial change in the incomes of the parties should constitute a changed circumstance.

. When total gross adjusted income of the parents exceeds $12,500.00 per month, the Guidelines do not apply and support is to be set in accordance with N.C. Gen. Stat. § 50-13.4(c). Taylor v. Taylor, 118 N.C. App. 356, 362-63, 455 S.E.2d 442, 446 (1995), rev’d on other grounds, 343 N.C. 50, 468 S.E.2d 33, reh’g denied, 343 N.C. 517, 472 S.E.2d 25 (1996).