Opinion
No. COA11–1217.
2012-07-3
Robert Glen MEEKER, Plaintiff, v. Anamarie R. MEEKER, Defendant.
Sandlin & Davidian, P.A., by Deborah Sandlin and Lisa Kamarchik, for plaintiff-appellant. Sharpe, MacKritis & Dukelow, P.L.L.C., by Lisa M. Dukelow, for defendant-appellee.
Appeal by plaintiff from order entered 11 March 2011 by Judge William A. Marsh, III in Durham County District Court. Heard in the Court of Appeals 23 February 2012. Sandlin & Davidian, P.A., by Deborah Sandlin and Lisa Kamarchik, for plaintiff-appellant. Sharpe, MacKritis & Dukelow, P.L.L.C., by Lisa M. Dukelow, for defendant-appellee.
STEELMAN, Judge.
The trial court failed to make the necessary findings required to support its decision to modify child support.
I. Factual and Procedural Background
On 8 January 2001, Robert Glenn Meeker (“plaintiff”) filed a complaint against his then-wife, Anamaria R. Meeker (“defendant”) seeking a divorce from bed and board, child custody, child support, and equitable distribution. They have one child who was born in 1996. Defendant filed an answer and counterclaim that sought a divorce from bed and board, post-separation support, alimony, child custody, child support, and equitable distribution. On 19 November 2002, the parties entered into a consent order that plaintiff was to pay defendant $775 per month in child support. On 6 October 2009, defendant filed her second motion seeking an increase in child support. On 11 March 2011, the trial court entered an order increasing plaintiff's monthly child support obligation to $1600, assessing arrearages of $9900, and awarding defendant attorney's fees of $4000. The amount of child support ordered deviated from the North Carolina Child Support Guidelines.
Plaintiff appeals.
II. Defendant's Appeal
Plaintiff contends that the trial court's order contains several errors mandating reversal. We agree.
A. Standard of Review
Our District Courts determine the amount of child support to be paid by applying the presumptive North Carolina Child Support Guidelines. N.C. Gen.Stat. § 50–13.4(c) (2011). These guidelines provide that the trial court may deviate from the presumptive guidelines if it makes certain written findings:
(1) stating the amount of the supporting parent's presumptive child support obligation determined pursuant to these guidelines; (2) determining the reasonable needs of the child and the relative ability of each parent to provide support; (3) supporting the court's conclusion that the presumptive amount of child support determined under the guidelines is inadequate or excessive or that application of the guidelines is otherwise unjust or inappropriate; and (4) stating the basis on which the court determined the amount of child support ordered.
N.C. Child Support Guidelines, 2009 Ann. R. N.C. 41, 41 (Rev. Oct. 2006) (effective Oct. 1, 2006).
In reviewing child support orders, our review is limited to a determination whether the trial court abused its discretion. Under this standard of review, the trial court's ruling will be overturned only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.
Spicer v. Spicer, 168 N.C.App. 283, 287, 607 S.E.2d 678, 682 (2005) (citation omitted). The trial court's findings of fact must be supported by competent evidence. Atwell v. Atwell, 74 N.C.App. 231, 234, 328 S.E.2d 47, 49 (1985).
B. Reasonable Needs of the Child
Plaintiff contends that the trial court erred in assessing the reasonable needs of the minor child. We agree.
When a party asks the trial court to deviate from the child support guidelines, the trial court's findings must address several factors, including the amount needed for the child's health, education, and maintenance. See Spicer, 168 N.C.App. at 293–94, 607 S.E.2d at 685–86 (discussing the factors that must be addressed in the trial court's findings). The trial court failed to consider these factors in its findings of fact. We vacate the trial court's order and remand for entry of a new order containing the necessary findings of fact in accordance with our decision in Spicer. See id.
Further, we address several issues that are likely to arise on remand.
C. Plaintiff's Ability to Pay
Plaintiff contends the trial court erred in determining his ability to pay. We agree.
Plaintiff argues that several of the findings of fact related to his ability to pay are not supported by competent evidence. The trial court determined that plaintiff's monthly income was $13,644. The calculations used to arrive at this result are contained on “Worksheet A,” attached to the order.
Worksheet A indicates that plaintiff received $25,517 in rents per year. The testimony at trial indicated that Meeker Holdings, a partnership in which plaintiff and his current wife were the sole partners, owned two pieces of real property. The rents generated by the properties fluctuated, but the highest potential rental income for the two properties was $38,500 per year. Plaintiff testified that, once he renovated a third property, it would generate $24,000 in rental income per year. Plaintiff argues that the amount the trial court attributed to him was “too speculative.” We agree. It is unclear how the trial court arrived at the amount of $25,517 per year. Assuming the third property belonged solely to plaintiff (the trial testimony is unclear on this point), it appears that the trial court apportioned or imputed some of the rental income of Meeker Holdings to plaintiff. See infra Section II.F (discussing imputed income); Cauble v. Cauble, 133 N.C.App. 390, 396, 515 S .E.2d 708, 712 (1999) (stating that a trial court may treat gross income of a closely-held corporation as income of the controlling shareholder without classifying it as “impute[d] income”).
It is also unclear how the trial court arrived at the figures attributed to “stocks,” as they are described on the worksheet. The evidence indicated plaintiff had a net income of $1679.61 from electronic trades for the 2009 tax year, but the trial court's worksheet attributes $1679.61 to plaintiff for “stocks” per month. It is also unclear how the trial court computed plaintiff's “personal expenses” based on the evidence given at trial. On remand, the trial court will articulate, with specificity, how it determines plaintiff's income and his ability to pay. See id. at 287, 607 S.E.2d at 682 (“The trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.”).
D. Defendant's Income
Plaintiff also contends the trial court erred in determining defendant's gross income and erred by failing to make a finding on defendant's ability to pay. We agree.
The North Carolina Child Support Guidelines state that gross income includes “maintenance received from persons other than the parties to the instant action.” N.C. Child Support Guidelines, 2009 Ann. R. N.C. at 43. Defendant testified that she earned “[a]pproximately $4038.95” from her employment per month. She also testified that her parents paid roughly $2000 of her expenses per month. The Worksheet A states that defendant's monthly adjusted gross income was $4039. The trial court ignored the contribution defendant received from her parents, which appears to qualify as income under the guidelines—“maintenance received from persons other than the parties” to the action. See State ex rel. Williams v. Williams, 179 N.C.App. 838, 842, 635 S.E.2d 495, 498 (2006) (trial court erred in failing to include payment of plaintiff's rent by non-parties as “maintenance received from other persons” under child support guidelines).
E. The Trial Court's Use of Affidavits
Plaintiff further argues that the trial court erred in relying on financial affidavits that were not admitted into evidence. However, the parties referenced the affidavits, which were submitted to the trial court prior to trial, numerous times during the trial without objection. Plaintiff cannot now complain that the trial court erred in relying on the affidavits. See, e.g., Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 21, 591 S.E.2d 870, 883–84 (2004) (explaining that our courts generally do not permit parties to assert conflicting positions in subsequent judicial proceedings).
This argument is without merit.
F. Imputed Income
Plaintiff argues that the trial court incorrectly imputed income to plaintiff. It is unclear whether the trial court imputed income to plaintiff, but finding of fact 16 suggests that this may be the case. The trial court found that “[p]laintiff's claimed income is not commensurate with the plaintiff's standard of living” and goes on to describe his standard of living. A court may not assess potential or imputed income against a party unless the court finds that the “parent's voluntary unemployment or underemployment is the result of the parent's bad faith or deliberate suppression of income to avoid or minimize his child support obligation.” N.C. Child Support Guidelines, 2009 Ann. R. N.C. at 43. There is no such finding in the order. On remand, the trial court must state whether its computations are based on potential or imputed income. The court must also make the necessary findings to support these computation methods, if appropriate.
The trial testimony tended to suggest that plaintiff's current spouse makes a significant contribution to the couple's combined wealth. She testified that her annual salary was $145,000.
G. Deviation From Child Guidelines
Plaintiff argues the trial court erred in deviating from the child support guidelines. We agree.
As we explained above, the trial court's order was deficient with respect to the needs of the child and the parties' ability to pay. The trial court must make findings on these points before deviating from the presumptive guidelines. N.C. Child Support Guidelines, 2009 Ann. R. N.C. at 41. Therefore, the trial court erred in deviating from the guidelines.
III. Conclusion
We vacate the trial court's order. We decline to address plaintiff's arguments concerning attorney's fees and whether there was a substantial change in conditions warranting an increase in child support. On remand, the trial court will address these issues in light of additional findings of fact consistent with this opinion. In its discretion, the trial court may take additional evidence or enter an order based upon previous testimony.
VACATED AND REMANDED. Judges ELMORE and STROUD concur.
Report per Rule 30(e).