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NO. COA98-91 NORTH CAROLINA COURT OF APPEALS Filed: MARJORIE K. CHUSED, Plaintiff v. ANDREW M. CHUSED, Defendant Appeal by defendant from order filed 16 July 1997 by Judge David A. Leech in Pitt County District Court. of Appeals 20 October 1998. J. Randal Hunter, for plaintiff appellee. White & Allen, P.A., by David J. Fillippeli, Jr., for defendant appellant. GREENE, Judge. Andrew Chused (Defendant) appeals from the trial court's order reducing his child support obligation; finding him in civil contempt for failing to pay child support; and ordering him to pay the attorney's fees of Marjorie Chused (Plaintiff). Plaintiff and Defendant were married (1974), separated (1991), and divorced (1993). During their marriage, they had Heard in the Court 15 December 1998

three children, born 8 February 1978, 3 October 1979, and 20 April 1982. On 23 July 1992, a consent order was signed by the parties resolving issues of alimony, child custody, child support, and attorney's fees. This order directed Defendant to pay child

support in the initial sum of $4,000.00 per month until the oldest child reached age eighteen or completed high school; $3,200.00 monthly until the middle child reached age eighteen or completed high school; and $2,500.00 per month until the youngest child reached age eighteen or completed high school. At the time

of the consent decree, Defendant was earning $142,000.00 annually. In October of 1995, Defendant was terminated

involuntarily from his employment and, because of a severance package, continued to receive his full salary through July of 1996. Defendant began practicing as a certified public

accountant in early 1997. On 17 July 1996, Defendant filed for a reduction in his child support obligation claiming that he had no income from employment. In September of 1996, Defendant unilaterally reduced

his child support payment to $1,050.00 per month. Evidence at the hearing of Defendant's modification request revealed that, as of the date of the hearing, Defendant had an estate worth approximately $975,000.00 (consisting primarily of stock and real estate) and Plaintiff had an estate valuing approximately $380,000.00 (consisting primarily of stock and real estate). The evidence further revealed that Defendant was not

yet earning any income from his new accounting business, his current occupation, but was receiving approximately $8,000.00 annually from his investments. earning $22,464.00 annually. Plaintiff was employed and Each of the three children had

respective trusts for their benefit valued at approximately $300,000.00. At the time of the hearing, the oldest child was in

college. The trial court signed an order on 9 July 1997 reducing Defendant's child support obligation from $3,200.00 to $2,375.00, commencing 1 September 1996; adjudicating Defendant in civil contempt of court; and ordering him to pay $14,575.00 to purge himself of this contempt. In support of the order, the trial

court entered pertinent findings of fact and conclusions of law. In summary, the trial court found: (1) Defendant has the "present capacity to earn no less than $55,000.00"; (2) Defendant owns assets "having a net value exceeding $900,000.00"; (3) Plaintiff is employed and earning "$12.00 per hour and works approximately 36 hours per week"; (4) the increased needs of the children will be offset by the income from their trust; (5) "the needs of the children are at least $2,375.00 per month in order to maintain them in the style of living to which they [have become] accustomed"; (6) in "light of . . . [Defendant's] assets, income, and earning capacity, and considering the needs of the children and [Plaintiff's] income, the court finds that [Defendant] is entitled to a present reduction in his child support obligation in the amount of $825.00"; (7) the new amount of child support "is consistent with the North Carolina Child Support Guidelines"; (8) Defendant has, since September 1996, reduced the amount of child support he has paid to $1,050.00; (9) Defendant has had the ability to pay the sum due of $2,375.00 since 1 September 1996; (10) Defendant has "willfully and intentionally failed and refused to comply" with the terms of the consent decree; (11) Defendant "has the ability to pay the arrearage [of $14,575.00]

existing at the time this order is signed . . . within 60 days therefrom"; (12) Plaintiff has been represented by Randall Hunter in these proceedings and the reasonable value of his services is no less than $3,651.00; and (13) Plaintiff "does not have the ability to pay these [attorney's] fees" and Defendant "does have the ability to pay [them] within 60 days from the entry of this order." The trial court concluded that: (1) there had been a

substantial change in circumstances; (2) Defendant had willfully and intentionally violated the consent decree; (3) Defendant was in civil contempt of court; and (4) Plaintiff was entitled to an award of attorney's fees in the amount of $3,651.00.

The issues are whether: (I) earning capacity may be considered in setting child support absent a finding of bad faith; (II) the trial court may deviate from the North Carolina Child Support Guidelines Schedule only upon a timely request from either party; (III) there is evidence to support the trial court's finding that Defendant had the ability to pay $14,575.00; and (IV) the trial court properly considered the relative estates of the parties in awarding attorney's fees. I In this case, Defendant seeks a reduction of his child support obligation pursuant to N.C. Gen. Stat.

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