Christie v. Christie

59 N.C. App. 230 | N.C. Ct. App. | 1982

WEBB, Judge.

This is an action to modify the provisions of child support contained in a separation agreement. The court has the power to make this modification. See McKaughn v. McKaughn, 29 N.C. App. 702, 225 S.E. 2d 616 (1976).

The defendant’s first assignment of error is to the court’s awarding counsel fees to the plaintiff. We believe this assignment of error has merit. The court did not find as facts that the plaintiff was acting in good faith, that plaintiff did not have sufficient means to defray the expenses of the action, or that defendant had refused to provide support which was adequate. It was error to award attorney fees to the plaintiff without these findings of fact. Hudson v. Hudson, 299 N.C. 465, 263 S.E. 2d 719 (1980) and Stanback v. Stanback, 287 N.C. 448, 215 S.E. 2d 30 (1975).

In his second assignment of error, the defendant argues that it was error to order the defendant to pay one-half the expenses of the orthodontist. The defendant contends that a decree for specific performance should not have been entered without a finding that the plaintiff had an inadequate remedy at law. We believe this assignment of error has merit. In Moore v. Moore, 297 N.C. 14, 252 S.E. 2d 735 (1979) it was held that a wife was entitled to a decree for specific performance of alimony payments in a separation agreement. The Supreme Court said that to require a multiplicity of suits to collect support payments did not give the plaintiff an adequate remedy at law. In this case it will not require a multiplicity of suits to collect the orthodontist charges should the defendant fail to pay them. We do not believe the plaintiff has shown she does not have an adequate remedy at law.

In his third assignment of error, the defendant concedes that the support payments for the children are reasonable. He objects to being required to pay $528.02 in one sum for all children rather than having the support payments allotted among the children. We find no error in the way the defendant was ordered to make the support payments. We note that the oldest child is now eighteen years of age so that the defendant is no longer responsible for her support. The defendant may move the court to reduce his child support payments by the amount of the total payments allotted to his oldest child.

Reversed and remanded in part; affirmed in part.

Judges Hedrick and Hill concur.