An Order was filed establishing child support in March 2007. The March Order was based directly on 2006 Schedule C earnings divided by 12 yielding monthly avearge of 11,000 monthly.
In October 2007 I filed a Motion for Modification alleging a substantial and involuntary decrease in income. The Motion was heard Friday and was Denied.
I introduced evidence in the way of accountant testimony, bank statements, cancelled checks, credit card statement and summaries that indicated my average monthly income was now 2,800 monthly. I argued the “change of circumstance” was reduced income and that it was “substantial” and involuntary.
There was no evidence introduced that the reduction in income was in bad faith. My business has simply declined for a number of reasons.
I was required to miss 60 plus days from my work (I am a sole proprietor) in late 2006 (prior to the establishment Order) due to medical necessity. I was ill and could not work. This absence has affected my earnings in 2007 today. The judge would not allow me to introduce evidence that I missed 60 plus days through no fault of my own in 2006 because that pre-dated the Order establishing support. The reality is, the work I didnt do then is decreasing my income now.
The plaintiff’s counsel argued that I “controlled” my income and could have made different deductible business expenses, etc, and that I “finagled” although he never pointed to any evidence of bad faith or finagling.
Am I completely wrong in believing the law in North Carolina allows for a Modification if there has been a substantial and involuntary decrease in income?
The Judge never determined my income based upon the documents available at the hearing, thus, never reaching the “substantially reduced income” issue. The Judge simply said I had not met my burden of proof in showing a substantial and involuntary change in cirumstance.
Any guidance is appreciated and if you can point to controlling case law that would be a tremendous help.