Voshell v. Voshell , 68 N.C. App. 733 ( 1984 )

315 S.E.2d 763 (1984)

Dora Faye VOSHELL
v.
James H. VOSHELL.

No. 8325DC84.

Court of Appeals of North Carolina.

June 5, 1984.

Yount & Walker by Rufus F. Walker, Hickory, for plaintiff-appellee.

J. Bryan Elliott, Hickory, for defendant-appellant.

PHILLIPS, Judge.

Since the evidence presented at the hearing was not brought forward in the record, we must and do presume that the judge's findings of fact are supported by competent evidence. Town of Mount Olive v. Price, 20 N.C.App. 302, 201 S.E.2d 362 (1973). Thus, the main questions remaining are whether the facts found support the conclusions made and judgment entered.

By stipulating to the "change of condition" issue, the parties, in effect, agreed to give the separation agreement, which had not received the court's sanction, the status of a previously entered alimony and child support order. Though a dubious practice, it did no harm in this instance and we do not quibble about it; nevertheless, the facts found do not support the conclusion that a substantial change of condition had occurred and the judgment in that respect was erroneous. Rowe v. Rowe, 305 N.C. 177, 287 S.E.2d 840 (1982). Defendant's situation has not significantly changed, as the facts found show. The only change of consequence is in plaintiff's situation; the job that she has in Georgia pays $3.92 an hour, whereas the one she had here paid $4.50; and she is now living in a rented house of inferior quality at a monthly cost of $250, whereas before she was living in her own home. But the separation agreement was made in contemplation of plaintiff leaving her home and job here to move back to Georgia; it was known that she would have to find a job and place to live when she got there and that whatever arrangements were made would necessarily be different from the arrangements that existed when she was here. Thus, though these changes have occurred, they are not the type that gives rise to legal relief; they were inherent in the agreement, cannot be the basis for revising it, and the order increasing defendant's alimony payments is therefore set aside. Because of the peculiar circumstances involved, however, and for the guidance of the parties, we interpret the order incorporating the agreement therein as being based on the conditions that existed after plaintiff was well settled in her new home, which is to say at the time of the hearing appealed from.

The defendant's exception to the award of attorney's fees was also well taken. Attorney's fees can properly be awarded in custody and child support cases upon adequate findings that the moving party acted in good faith and has insufficient means to defray the expense of the suit. Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980). Though the court found that plaintiff does not have sufficient income and assets with which to pay her attorney, no finding was made as to plaintiff's good faith in bringing the action. Thus, the award of attorney's fees cannot stand.

The order requiring defendant to pay plaintiff $5,000 in exchange for her interest in the marital home was likewise without authority. When this order was made, the rights of the parties with respect to the house were still governed by the separation agreement and the agreement calls for a division of the proceeds after it is sold. Agreements that have not been incorporated into a court order cannot be modified by the court except with the consent of the parties. Holsomback v. Holsomback, 273 N.C. 728, 161 S.E.2d 99 (1968). As the order shows, the judge first modified the agreement to require defendant to pay the $5,000, then incorporated it into the order. Now that the agreement has been incorporated into the order of court, if the property still has not been sold, the arrangements in regard to it can properly be reconsidered by the trial court. Walters v. Walters, 307 N.C. 381, 298 S.E.2d 338 (1983).

But the court's refusal to award defendant more than nominal damages for plaintiff's breach of the non-molestation clause is affirmed. Since the court found that defendant suffered no actual damage because of plaintiff's harassment and the evidence was not recorded, error has not been shown.

The parts of the order increasing plaintiff's alimony, awarding her attorney's fees, and directing defendant to pay plaintiff $5,000 are reversed, and the other parts of the order are affirmed.

Reversed in part; affirmed in part.

ARNOLD and JOHNSON, JJ., concur.