Volume 108 — North Carolina Court of Appeals Reports

1. Divorce and Separation 392.1 (NCI4th) — Child Support Guidelines — notice of hearing — waiver The trial court did not err by deviating from the Child Support Guidelines in an action to enforce a separation agreement where there was no notice of a request for a hearing to determine the reasonable needs of the children or the relative ability of the parents to pay support. Defendant waived the notice requirement when evidence was presented on these issues without objection. N.C.G.S. <cross_reference>50-13.4</cross_reference>(c). Am Jur 2d, Trial 412. 2. Divorce and Separation 392.1 (NCI4th) — Child Support Guidelines — deviation — findings — sufficient The trial court's findings were sufficiently specific to support a child support order which deviated from the Guidelines where the trial court made findings of fact concerning the plaintiff-wife's job and present earnings, the defendant-husband's job, 1990 salary and 1991 earnings, the reasonable monthly expenses and needs of the plaintiff and the two minor children, the defendant's fixed total expenses, and the amount he can reasonably afford to pay each month. Am Jur 2d, Divorce and Separation 1040, 1041. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 864.</block_quote> <block_quote> Court's power as to support and maintenance of children in marriage annulment proceedings. 63 ALR2d 1029.</block_quote> 3. Divorce and Separation 22 (NCI4th) — separation agreement — not incorporated into divorce decree — modification The trial court erred by modifying a provision of a separation agreement which had not been incorporated into the divorce decree without the parties' consent. The unincorporated separation agreement is a contract and the court was without authority to modify it absent the parties' consent. The Court of Appeals also expressed concern regarding a portion of the order which<page_number>Page 91</page_number> obligated defendant to pay $1009.70 per month in child support, even though the reasonable needs of the children were $1386, with $376.30 per month deducted from the father's equity in the marital home, because there was no guarantee of when or whether the marital home would be sold. If there are no available assets and the monthly amount cannot be paid, the support must be reduced. Am Jur 2d, Divorce and Separation 426, 1040, 1041. <block_quote> Excessiveness or adequacy of money awarded as child support. 27 ALR4th 864.</block_quote> <block_quote> Opening or modification of divorce decree as to support or custody of child not provided for in the decree. 71 ALR2d 1370.</block_quote> <block_quote> Court's power as to support and maintenance of children in marriage annulment proceedings. 63 ALR2d 1029.</block_quote>

1. Master and Servant 65.2 (NCI3d) — back injury — temporary total disability — supported by evidence The evidence supported the Industrial Commission's finding that plaintiff was temporarily totally disabled where plaintiff injured and re-injured his back while working for defendant and<page_number>Page 260</page_number> there was evidence that plaintiff suffers from chronic pain syndrome as a result of his injury; chronic pain syndrome is not curable; plaintiff will have to live with pain the rest of his life; the pain is 50% physical and 50% psychological; the pain is real despite the fact that it has a partly psychological origin; several doctors agreed that plaintiff suffered pain, although they disagreed on the cause; one doctor gave his opinion that plaintiff could never return to the heavy work he had performed and another felt that plaintiff could perform medium to light work; none of the experts described any method whereby the intensity of a person's pain can be measured other than by the subjective opinion of the patient himself; plaintiff described his pain to a doctor during examination as constant and unrelenting and as being aggravated by all activity, particularly activity involving movement, stooping, bending, and lifting; plaintiff assessed his pain at five on a scale of one to five, with five being unbearable; and plaintiff testified before the Commission that he had not returned to work because his pain was so severe that he had not been able to do so. The Commission, in its proper role as sole judge of the credibility of witnesses, found plaintiff's testimony that he was unable to work due to pain more credible than the expert testimony that he was capable of performing medium to light work. Am Jur 2d, Damages 969, 982. <block_quote> Admissibility, in civil case, of expert evidence as to existence or nonexistence, or severity of pain. 11 ALR3d 1249.</block_quote> <block_quote> Sufficiency of evidence, in personal injury action, to prove permanence of injuries and to warrant instructions to jury thereon. 18 ALR3d 170.</block_quote> 2. Master and Servant 65.2 (NCI3d) — back injury — future medical and surgical treatment — supported by evidence The evidence supports the Industrial Commission's finding that plaintiff is entitled to future medical care where plaintiff injured and re-injured his back while working for defendant; the Commission correctly found that plaintiff was temporarily totally disabled; and, despite evidence to the contrary, there was evidence that a doctor recommended further medical treatment and that such treatment might effect a cure or give relief.<page_number>Page 261</page_number> Am Jur 2d, Damages 166, 200, 213. <block_quote> Requisite proof to permit recovery for future medical expenses as item of damages in personal injury action. 69 ALR2d 1261.</block_quote> 3. Master and Servant 99 (NCI3d) — back injury — workers' compensation — attorney fees The portion of a motion in the Court of Appeals for attorney fees in defending a workers' compensation appeal before the Industrial Commission was remanded to the Commission where the record reflects that the Commission ordered each side to pay its own costs, but it is not clear whether "costs" referred to attorney fees. The portion of the motion dealing with attorney fees for the appeal to the Court of Appeals was granted because the insurer brought the appeal and the decision required the insurer to pay temporary disability benefits and future medical expenses. N.C.G.S. <cross_reference>97-88</cross_reference>; N.C.G.S. <cross_reference>97-88.1</cross_reference>. Am Jur 2d, Worker's Compensation 723, 725.

Arbitration and Award 2 (NCI4th) — termination agreement — arbitration clause — no meeting of minds as to arbitration Where a dealership termination agreement containing an arbitration clause was not signed by plaintiff on the line designated for his signature but was signed by him only below an addition to the agreement whereby plaintiff agreed to repay defendant corporation $1,000 per month until the balance he owed was paid, an ambiguity existed as to whether plaintiff agreed to all the terms in the termination agreement or merely to those in the addition immediately preceding his signature, and the trial court properly admitted extrinsic evidence to explain this ambiguity. The evidence supported the trial court's finding and conclusion that there was no valid agreement to arbitrate where plaintiff's evidence showed that his only concern on the date the agreement was signed was to arrive at an agreement to pay the balance he owed defendant corporation, that no negotiations concerning arbitration ever occurred, and that defendant's representatives never discussed or explained the arbitration clause. Am Jur 2d, Arbitration and Award 11, 12.

Master and Servant 69.1 (NCI3d) — injured employee — total disability award sought — employee able to work — showing of reasonable effort to find other employment required An injured employee seeking an award of total disability under N.C.G.S. <cross_reference>97-29</cross_reference>, who is unemployed, medically able to work, and possesses no preexisting limitations which would render him unemployable, must produce evidence of a reasonable effort to find other employment. Am Jur 2d, Workers' Compensation 398.