Robinson v. Robinson, 10 N.C.App. 463, 179 S.E.2d 144 (1971)
Betty Albright ROBINSON
Billy Lewis ROBINSON.
Court of Appeals of North Carolina.
Feb. 24, 1971.
John Randolph Ingram, Asheboro, for plaintiff.
Morgan, Byerly, Post & Herring, by W. B. Byerly, Jr., High Point, for defendant.
Plaintiff assigns as error the order vacating the attachment of defendant’s Piper airplane. The order of attachment was issued by the clerk of court on 23 February 1970, and the levy under the original order was made by the sheriff on 4 April 1970. G.S. § 1–440.16(c) provides that levy under an order of attachment must be made within ten days of the issuance of the order. G.S. § 1–440.13(b) provides procedure for issuance of alias and pluries orders of attachment. In this case the sheriff’s levy was under the original order for attachment of defendant’s Piper airplane and was 41 days after its issuance. This was insufficient to constitute a valid levy, and there was no error in the entry of the order to vacate it.
Plaintiff’s primary argument on this appeal is centered upon the order allowing the reduction in support payments based, at least in part, upon defendant’s ‘change of employment.’ Plaintiff argues that defendant sold a profitable business for a small sum, and took a job at $3.00 per hour, for the deliberate purpose of rendering himself unable to pay adequate support for plaintiff and their children.
Plaintiff is entitled to a fair and reasonable allowance for support for herself and her three children. The granting of an allowance and the amount thereof does not necessarily depend upon the earnings of the husband. One who is able bodied and capable of earning, may be ordered to pay subsistence. Brady v. Brady, 27o N.C. 299, 160 S.E.2d 13; Harrell v. Harrell, [10 N.C.App. 468] 253 N.C. 758, 117 S.E.2d 728. If the husband is honestly and in good faith engaged in a business to which he is properly adapted, and is making a good faith effort to earn a reasonable income, the award should be based on the amount which defendant is earning when the award is made. To base an award on capacity to earn rather than actual earnings, there should be a finding based on evidence that the husband is failing to exercise his capacity to earn because of a disregard of his marital obligation to provide reasonable support for his wife and children. Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912.
In the present case defendant filed a motion seeking to modify the 18 December 1969 order by reducing the amount of the award of support. At the hearing he testified that his net earnings were approximately $15,000.00 per year from his welding business, but that he was in process of selling his business and was going to take a job at $3.00 per hour. On the basis of a forty hour work week, if he works without vacation or other time off, defendant’s gross earnings from his new job will be approximately $6,240.00 per year; this is less than half of his net earnings from the business he sold.
Prior to the passage of G.S. § 50–16.9 (effective 1 October 1967) an order for alimony or support Pendente lite could be modified in the discretion of the judge without a finding of a charge of circumstances. Snuggs v. Snuggs, 260 N.C. 533, 133 S.E.2d 174; Rock v. Rock, 260 N.C. 223, 13i S.E.2d 342. However, G.S. § 50–16.9 provides that an order for alimony or alimony Pendente lite may be modified or vacated upon motion and a showing ‘of changed circumstances.’ The criteria for determining the amount of alimony are provided in G.S. § 50–16.5(a) as follows: ‘Alimony shall be in such amount as the circumstances render necessary, having due regard to the estates, earnings, Earning capacity, condition, Accustomed standard of living of the parties, and other facts of the particular case.’ (Emphasis added.) The determination of the amount of alimony Pendente lite shall be in the same manner as alimony. G.S. § 50–16.3(b).
Upon a motion for modification of an award of alimony and support Pendente lite the movant has the burden of going
forward with the evidence to show change of circumstances. However, a finding of a change of circumstances does not necessarily require or justify a modification of the previous order. [10 N.C.App. 469] And where, as in the present case, an issue of whether the husband is failing to exercise his capacity to earn because to a disregard of his marital and parental obligations to provide adequate support is raised, the trial judge should make findings from the evidence to resolve that issue. If the evidence supports a finding, and the trial judge so finds, that the husband has voluntarily reduced his actual earnings, and is failing to exercise his capacity to earn because of a disregard of his marital or parental obligations to provide adequate support, then the award should not be modified to accommodate the reduced actual earnings.
The trial judge made no findings of fact to resolve this issue and the judgment appealed from is therefore vacated and this cause is remanded to the District Court, Guilford County.
We make no observations concerning the propriety of the requirements of the 18 December 1969 judgment of Judge Washington; defendant did not appeal from that judgment and it is therefore not before us.
We also note that G.S. § 50–13.4(e) provides in part as follows: ‘In every case in which payment for the support of a minor child is ordered and alimony or alimony Pendente lite is also ordered, the order shall separately state and identify each allowance.’ And G.S. § 50–16.7(a) provides in part: ‘In every case in which either alimony or alimony Pendente lite is allowed and provision is also made for support of minor children, the order shall separately state and identify each allowance.’ Neither of the orders entered in this case comply with the statutory provisions quoted above.
MORRIS and VAUGHN, JJ., concur.