Opinion
No. COA10-471
Filed 1 February 2011 This case not for publication
Appeal by defendant from order entered 10 January 2007 by Judge William K. Hunter in Guilford County District Court. Heard in the Court of Appeals 26 October 2010.
Nix Cecil, by Lee M. Cecil, for plaintiff-appellee. Metcalf Beal, L.L.P., by Christopher L. Beal, for defendant-appellant.
Guilford County No. 06 CVD 30.
The trial court did not make inconsistent findings of fact regarding defendant's income for purposes of post-separation support and child support. Where defendant's child support obligation was set in accordance with the North Carolina Child Support Guidelines, specific findings of fact regarding defendant's estate were not required. Where the trial court made findings of fact regarding the parties' incomes and reasonable needs, it complied with the provisions of N.C. Gen. Stat. § 50-16.2A. The trial court's order is affirmed.
I. Factual and Procedural Background
On 23 April 1994, Ashley Davis (plaintiff) and Timothy Davis (defendant) were married. Two children were born of the marriage. The parties separated on 14 September 2005. On 5 January 2006, plaintiff filed a complaint seeking equitable distribution, post-separation support, alimony, child custody, child support, and attorney's fees. Plaintiff requested an interim distribution of marital property. Defendant filed an answer and counterclaims, which also sought an interim distribution of marital property.
On 10 January 2007, Judge William K. Hunter entered an order directing defendant to pay post-separation support in the amount of $4,130.00 per month, pay child support in the amount of $1,490.00 per month, procure medical insurance for the minor children, and pay 92.23 percent of any uninsured medical expenses of the minor children. The order further held that defendant was in arrears of $13,073.00 for post-separation support and $20,882.36 for child support. The trial court found that defendant was employed by Davis Tree Service (DTS), was the sole shareholder, and earned a gross monthly income of $10,974.37. The trial court also noted that defendant testified that DTS was on the verge of corporate bankruptcy. Plaintiff's claim for attorney's fees was continued for future determination.
On 5 February 2007, plaintiff filed a verified motion for contempt based upon defendant's failure to comply with the provisions of the 10 January 2007 order. That same day, the trial court issued a show cause order. On 27 March 2007, defendant filed a motion to modify child support and post-separation support based upon a substantial change in circumstances affecting his ability to pay due to DTS filing corporate bankruptcy and defendant filing personal bankruptcy. Defendant further alleged that DTS was in the process of being totally liquidated; that he was now employed by a new entity, called "Davis Family Tree Service," which was owned by Patricia Blackburn (Blackburn); and that he was earning an income of $600.00 per week. On 9 April 2007, the trial court entered an order concluding that defendant was not in willful contempt because he did not have the present ability to comply with the provisions of the court's 10 January 2007 order.
Blackburn and defendant were married on 30 June 2007.
On 2 May 2007, Guilford County Child Support Enforcement (IV-D) filed a motion for an order to show cause for failure to pay child support and post-separation support. An order to show cause was subsequently issued by the trial court. On 12 September 2007, the trial court heard defendant's motion to modify his support obligations and the motion to show cause. An order was entered setting defendant's child support arrearage at $32,436.70, terminating Child Support Enforcement's involvement in the case, directing that the finances of Davis Family Tree Service be reviewed, and continuing the matter until 4 December 2007.
On 11 March 2008, Judge Susan R. Burch entered an order denying defendant's motion to modify his child support obligations because "Defendant's reduction in income was voluntary due to his own actions, to wit: his underemployment and deliberate suppression of income." Judge Birch also found that defendant had acted in bad faith in regard to paying his child support obligations. At the hearing, plaintiff made a motion to withdraw from enforcing the post-separation support, which was allowed by the court. Defendant was found to be in willful contempt based on his failure to pay child support. Defendant's child support arrearage was set at $34,163.04.
On 5 September 2008, the parties resolved the pending claim for alimony. On 8 October 2008, defendant filed a notice of appeal to this Court. The only order appealed was the 10 January 2007 order awarding plaintiff post-separation and child support. On 16 April 2009, this Court dismissed defendant's appeal (COA09-245). On 12 June 2009, the parties voluntarily dismissed their pending claims for equitable distribution with prejudice. On 29 September 2009, the trial court entered an order making the temporary child custody order entered on 26 April 2006 permanent. On 20 October 2009, defendant filed a second notice of appeal from the 10 January 2007 order. Defendant did not appeal the 11 March 2008 order finding that he deliberately suppressed his income in bad faith and held him in civil contempt.
II. Perceived Inconsistent Findings
In his first argument, defendant contends that the trial court erred in making inconsistent and contradictory findings of fact concerning defendant's income for purposes of post-separation support and child support. We disagree.
Defendant contends that the trial court made five "critical" and contradictory findings of fact. The trial court found:
7. The Defendant is employed by Davis Tree Service and is the sole shareholder of Davis Tree Service. The Defendant earns gross monthly income of $10,974.37 consisting of amounts deposited into banks and cash received. The Defendant pays taxes of 20% on the reported income.
8. The Defendant testified that Davis Tree Service had numerous debts for equipment and vehicles that Defendant claimed Davis Tree Service could not meet and was in the process of filing corporate bankruptcy.
. . . .
10. The Defendant is the supporting spouse within the purview of N.C.G.S. § 50-16.1(A)(5) and is capable of providing Plaintiff with postseparation support as set forth herein.
13. The Defendant has the ability to pay the amount of $4,130.00 per month as a reasonable and necessary amount of postseparation support.
. . . .
18. The Defendant's child support obligation . . . is $1,490.00 per month for the two minor children with the Defendant paying at least $249.00 per month for medical insurance for the two minor children. . . .
Defendant argues that findings 7, 10, 13, and 18 are in direct conflict with finding 8. Defendant contends that "[i]t seems incomprehensible that a corporation in financial distress can or should pay Defendant $10,974.37 per month as income." Defendant's argument is misplaced because of his erroneous reading of finding of fact 8. Defendant asserts that the trial court found that Davis Tree Service had numerous debts and was having trouble paying its bills. However, finding of fact 8 was merely a recitation of the testimony given by defendant at the hearing and was not a finding that this testimony was true or correct. See In re Green, 67 N.C. App. 501, 505 n. 1, 313 S.E.2d 193, 195 n. 1 (1984) ("[R]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge. . . ." (emphasis omitted)). Finding of fact 8 is not inconsistent with findings 7, 10, 13, and 18.
Defendant further argues that evidence was presented as to the outstanding debts owed by DTS as of 1 December 2006 and that the trial court failed to make any findings regarding the "financial viability" of DTS. Defendant refers this Court to the last two pages in the record and contends that this typed list of DTS's creditors was offered by defendant at the hearing as evidence that DTS was in debt and financial trouble. However, defendant elected not to have a transcript of the proceedings included as part of the record pursuant to Rule 7(a)(1) of the Rules of Appellate Procedure, nor did defendant include a narrative of the trial proceedings in accordance with Rule 9(c)(1) of the Rules of Appellate Procedure. The record is also devoid of any evidence log maintained by the clerk, which would have noted the exhibits introduced at trial. This Court is unable to determine whether these pages were admitted into the evidence before the trial court. Even assuming arguendo that the list of creditors was admitted into the evidence, it is well-established that the trial court is "the sole arbiter of credibility and may reject the testimony of any witness in whole or in part." Fox v. Fox, 114 N.C. App. 125, 134, 441 S.E.2d 613, 619 (1994) (citation omitted). It is clear from the trial court's findings of fact that it did not find defendant's testimony to be credible.
This argument is without merit.
III. Conclusions of Law
In his second argument, defendant contends that the trial court erred in making conclusions of law not supported by its findings of fact. We disagree.
A. Child Support
Defendant first argues that the trial court erred in concluding that it was appropriate for him to pay $1,490.00 per month in child support without making any findings as to his estate pursuant to N.C. Gen. Stat. § 50-13.4(c). N.C. Gen. Stat. § 50-13.4(c) (2007) provides, in relevant part:
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. . . .
However, it is well-established that child support set in accordance with the North Carolina Child Support Guidelines "is conclusively presumed to be in such amount as to meet the reasonable needs of the child and commensurate with the relative abilities of each parent to pay support." Beamer v. Beamer, 169 N.C. App. 594, 596, 610 S.E.2d 220, 222-23 (2005) (quotation omitted). "Absent a request by a party for deviation, when the court enters an order for child support determined pursuant to the Guidelines, specific findings regarding the child's reasonable needs and the parents' ability to provide support generally are not required." Head v. Mosier, 197 N.C. App. 328, 334, 677 S.E.2d 191, 196 (2009) (citation omitted).
In the instant case, the trial court used Worksheet A from the North Carolina Child Support Guidelines to determine defendant's support obligations, and attached it to and incorporated the worksheet into its order. Specific findings of fact regarding defendant's estate were not required to support the trial court's determination of the appropriate amount of child support.
This argument is without merit.
B. Post-Separation Support
Defendant also argues that the trial court failed to comply with N.C. Gen. Stat. § 50-16.2A when it awarded plaintiff $4,130.00 a month in post-separation support.
N.C. Gen. Stat. § 50-16.2A(b) provides:
In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons.
N.C. Gen. Stat. § 50-16.2A(b) (2007).
In the instant case, the trial court made findings that: (1) plaintiff earned a gross monthly income of $910.00; (2) plaintiff was in need of post-separation support; (3) defendant earned a gross monthly income of $10,974.37; (4) defendant had monthly needs of $2,281.00; and (5) that defendant had the ability to pay post-separation support in the amount of $4,130.00 per month from January 2006 through 31 December 2007. As stated above, the record is devoid of a verbatim transcript of the hearing. "[W]hen an appellant `fail[s] to include a narration of the evidence or a transcript with the record, we presume the findings at bar are supported by competent evidence.'" McKyer v. McKyer, 182 N.C. App. 456, 463, 642 S.E.2d 527, 532 (2007) (quotation omitted). The trial court complied with N.C. Gen. Stat. § 50-16.2A; and its findings are binding on appeal.
This argument is without merit.
IV. Entry of Order
In his third argument, defendant contends that the trial court erred by entering the 10 January 2007 order because it was unfair to the parties. We disagree.
Defendant mainly reiterates his first and second arguments in this portion of his brief. The only authority defendant cites to support his assertion is Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976). In Beall, our Supreme Court vacated the defendant's support obligations where his alimony and child support payments would exhaust his income so that he could not meet his own necessary expenses, and would enable the plaintiff and the children to maintain a relatively high standard of living. Id. at 679, 228 S.E.2d at 413.
The holding in Beall is inapposite in this case. The trial court made findings as to the parties' incomes and relative needs as set forth in Section III.B. and concluded that defendant was able to pay post-separation support in the amount of $4,130.00. The trial court also properly determined defendant's child support obligation based upon the North Carolina Child Support Guidelines.
This argument is without merit.
AFFIRMED.
Judges BRYANT and ERVIN concur.
Report per Rule 30(e).