1. Child Support, Custody, and Visitation--child support--calculation of income--
closely held corporation
The trial court did not abuse its discretion in a child support action by imputing income
to defendant from a closely held farm supply business without finding that defendant had
deliberately depressed his income where the uncontradicted evidence supported the finding that
the profits were available to defendant by virtue of his controlling interest in the closely held
corporation.
2. Child Support, Custody, and Visitation--child support--calculation of income--
accrual accounting
The trial court did not abuse its discretion in a child support action by not considering the
accrual accounting method used by defendant's closely held corporation in calculating
defendant's income. Although defendant argued that the accrual method creates fictional
income and that the court could make no determination of income actually available, accrual
accounting figures represent income which is taxable for federal tax purposes and such amounts
are thus properly considered for purposes of the Child Support Guidelines. Furthermore, in
determining an obligor's gross income derived from an interest in a closely held corporation, the
court in its discretion may allow appropriate adjustments.
3. Child Support, Custody, and Visitation--child support--closely held corporation--
bad debts
The trial court did not abuse its discretion in a child support action by not allowing
claimed bad debt and depreciation expenses from a closely held corporation in computing
defendant's gross income. Under the Guidelines, the court is accorded the discretion to discern
those business expenses which are inappropriate for determining gross income for purposes of
calculating child support.
4. Child Support, Custody, and Visitation--child support--calculation of income--
losses
The trial court erred in a child support action by not including in defendant's income
losses from a corporation. Although straight line depreciation may be excluded from an
obligor's gross income in the court's discretion, the order in this case contains no reference to
defendant's ownership interest in this corporation and fails to reflect its treatment of these
corporate figures. The findings are not sufficiently specific to indicate whether the court
properly applied the Guidelines.
Appeal by defendant from order filed 5 May 1997 by Judge
Susan C. Taylor in Stanly County District Court. Heard in the
Court of Appeals 18 August 1998.
Morton, Grigg & Phillips, by Ernest H. Morton, Jr. and DavidL. Grigg, Jr., for plaintiff-appellee.
Tucker, Slaughter & Singletary, P.A., by William C. Tucker,
for defendant-appellant.
JOHN, Judge.
Defendant appeals the trial court's child support order,
asserting the court erred by (1) improperly calculating the
income of the [defendant] from the Farm Supply business; and (2)
not including in the income of the [defendant] the losses from
the Fun Park corporation. We vacate in part and remand in part.
Pertinent facts and procedural history include the
following:
Plaintiff and defendant, both residents of Stanly County, were
married 29 December 1968. Amanda Beth Cauble, the sole child of
the marriage, was born 24 November 1985. Following separation in
early 1991, the parties divorced 26 September 1994. Subsequent
to a hearing at the 28 October 1996 Session of Stanly County
District Court, an order awarding plaintiff custody of Amanda was
filed 24 March 1997.
Plaintiff's claim for child support was heard during the 19
March 1997 Civil Non-Jury Session of District Court of Stanly
County. In its 5 May 1997 order, the court entered the following
relevant findings of fact:
7. The plaintiff testified that she
was employed by Home Savings Bank of
Albemarle and that her current gross monthly
earnings are $2,885.00. . . .
8. In June of 1983, plaintiff and
defendant founded Stanly Farm Supply, Inc.
(hereinafter called Stanly Farm) with thedefendant owning 51% of the outstanding
shares of capital stock, namely, 251 shares,
and the plaintiff owning 49% of the
outstanding shares of capital stock, namely,
249 shares.
9. Stanly Farm is a closely held
corporation.
10. Since June 1, 1983, defendant has
managed the Stanly Farm business as its chief
executive officer.
11. Since June 1, 1983, Stanly Farm has
been engaged in the business of selling
feeds, seeds, fertilizer, farm equipment,
farm supplies and other related items to the
farming communities in Stanly County and
other surrounding counties.
12. Since January 1, 1983, Stanly Farm
has been a C corporation with its fiscal year
being the same as the calender year and its
method of accounting being the accrual
method.
13. For more than three years, the
defendant's annual salary with Stanly Farm
has been $8,000.00 In addition he has rented
a dump truck to Stanly Farm and has received
annual rental income of $5,400.00
. . . .
15. Since June 1, 1983, Stanly Farm has
had taxable income each calendar year, with
the exception of 1996, which tax return shows
a taxable income loss of $1,498.71.
16. All income after payment of taxes
of Stanly Farm since its inception in June of
1983 have been retained and the accumulated
retained earnings on December 31, 1996 was
$470,676.20.
In arriving at defendant's gross income from Stanly Farm
Supply, Inc. (Stanly Farm), the trial court allowed the following
as ordinary and necessary business expenses of the corporation:
Salaries and wages------------$62,599.72
Taxes and Licenses------------$10,532.72
Interest----------------------$487.56
Advertising-------------------$5,533.72
Other deductions--------------$74,409.79
However, in the interest of justice, the court excluded
the sums of $6,447.53 and $71,886.68, claimed by Stanly Farm on
its 1996 tax return as deductions respectively for depreciation
and bad debt. The court's order provided in this regard that:
19. The depreciation of $6,447.53 . . .
represents straight line depreciation or
lower than straight line depreciation.
Stanly Farm in earlier years did use an
accelerated component of depreciation.
20. The bad debts . . . represent[] bad
debts from sales in previous years and does
not represent cash dollars flowing out of
Stanly Farm during 1996.
21. Defendant also received from Stanly
Farm in 1996, $540.00 as reimbursement for
the use of his personal vehicle for Stanly
Farm and $5,400.00 rental income.
. . . .
23. On December 31, 1996, Stanly Farm
had on hand a cash balance of $69,301.49. . .
.
24. Defendant, as the owner of 51% of
the outstanding shares of the capital stock
of Stanly Farm, had the authority as to the
disbursement of any monies owned by Stanly
Farm.
25. Since June 1, 1983, Stanly Farm has
never paid dividends to its shareholders.
The court thereupon concluded:
2. The defendant's annual gross income
from his operation of Stanly Farm for
purposes of calculating child support is
$49,206.00 . . . [and the] appropriate level
of monthly gross income available to
defendant to satisfy his child support
obligation is $4,100.00. . . .
. . . .
5. The defendant's monthly obligation
for child support . . . is $467.00.
Also at issue at the child support hearing was defendant's
100% ownership of Fun Park, Inc. (Fun Park), a Subchapter-S
corporation established by defendant in 1996. Fun Park reported
a loss of $43,321.11 in 1996. Defendant's evidence tended to
show that $13,347.63 of this figure consisted of the straight
line depreciation component. The trial court's order contained
no findings or conclusions addressing defendant's income or loss
from Fun Park.
Defendant filed timely notice of appeal 25 April 1997.
Initially, defendant argues the trial court improperly (1)
imputed to [him] income of [Stanly Farm] without finding that he
had deliberately depressed his income; (2) determined the
amount of income available to him through [Stanly Farm] by
disregarding Stanly Farm's accrual accounting method; and (3)
fail[ed] to deduct from [the] income of [Stanly Farm] the
reasonable and necessary expenses of depreciation and bad debt .
. . incurred in an accrual accounting tax computation. Each of
these contentions is unfounded.
The
ultimate objective in setting awards for
child support is to secure support
commensurate with the needs of the children
and the ability of the father [mother] to
meet the needs.
Pittman v. Pittman, 114 N.C. App. 808, 810, 443 S.E.2d 96, 97
(1994). The statute governing child support provides that:
[p]ayments ordered for the support of a minorchild 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, [and]
accustomed standard of living of the child
and the parties . . . .
N.C.G.S. § 50-13.4(c) (Supp. 1997).
Prospective child support is normally determined under the
North Carolina Child Support Guidelines (the Guidelines), see
G.S. § 50-13.4(c), which utilize the gross income of each
parent in calculating the amount of child support required to be
payed thereunder by an obligor. Absent a request for variance,
support set consistent with the [G]uidelines
is conclusively presumed to be in such amount
as to meet the reasonable needs of the child
for health, education, and maintenance.
Browne v. Browne, 101 N.C. App. 617, 624, 400 S.E.2d 736, 740
(1991).
Under the Guidelines, gross income is defined as income
from any source, including income from . . . dividends, . . .
pensions, . . . interest, [and] trust income. North Carolina
Child Support Guidelines, AOC-A-162 (1994). Further, concerning
calculation of the gross income of a parent who is self-employed
or operates a business, such as defendant herein, the Guidelines
provide:
For income from self-employment, rent,
royalties, proprietorship of a business, or
joint ownership of a partnership or closely
held corporation, gross income is defined as
gross receipts minus ordinary and necessary
expenses required for self-employment or
business operation.
Id. (emphasis added).
Specifically excluded from ordinary and necessary expensesare
amounts allowable by the Internal Revenue
Service for the accelerated component of
depreciation expenses, investment tax
credits, or any other business expenses
determined by the Court to be inappropriate
for determining gross income for purposes of
calculating child support.
Id. (emphasis added). In addition, the
income and expenses from self-employment or
operation of a business should be carefully
reviewed to determine an appropriate level of
gross income available to the parent to
satisfy a child support obligation.
Id.
The amount of a trial court's child support award will not
be disturbed on appeal except upon a showing of abuse of
discretion. See Burnett v. Wheeler, 128 N.C. App. 174, 177, 493
S.E.2d 804, 806 (1997). In addition,
[b]ecause the Guidelines vest the trial court
with the discretion to disallow the deduction
of any business expenses which are
inappropriate for the purposes of calculating
child support, the trial court's decision . .
. to disallow the claimed expenses must be
upheld unless it is manifestly unsupported
by reason and therefore an abuse of
discretion.
Kennedy v. Kennedy, 107 N.C. App. 695, 700, 421 S.E.2d 795, 798
(1992) (citations omitted).
Moreover,
[t]his Court is bound by the trial
court's findings where there is competent
evidence to support them. If different
inferences may be drawn from the evidence,
[the judge sitting without a jury] determines
which inferences shall be drawn . . ., and
the findings are binding on the appellate
court.
Monds v. Monds, 46 N.C. App. 301, 302, 264 S.E.2d 750, 751 (1980)(bracketed language in original) (citations omitted). In this
latter regard, suffice it to state that our examination of the
instant record reflects competent evidence in support of each of
the trial court's findings, and we thus are bound by . . .
[said] findings. Id.
[1]Bearing the foregoing in mind, we proceed to consider ad
seriatim defendant's contentions as to the trial court's
treatment of his interest in Stanly Farm. Defendant first
maintains the trial court erroneously imputed to him income of
Stanly Farm without finding he had deliberately depressed his
income. Although defendant correctly asserts that income may be
imputed to a party only if there is a finding that the party
deliberately depressed his income, Burnett, 128 N.C. at 177,
493 S.E.2d at 806, the trial court herein did not impute income
to defendant. Rather, the court's computation of defendant's
income included his fifty-one per cent (51%) ownership of Stanly
Farm, which accorded him the authority to make decisions as to
the disbursement of any monies owned by Stanly Farm.
This Court has previously held that
setting an amount of child support [is]
dependent . . . upon the amount of
[defendant's] income and the nature of his
estate--whether exclusively owned or
controlled by defendant.
Shaw v. Cameron, 125 N.C. App. 522, 528, 481 S.E.2d 365, 369
(1997). In the instant case, the uncontradicted evidence
supports the trial court's finding that the profits of Stanly
Farm were available to defendant by virtue of his controlling
interest in the closely-held corporation. Thus, notwithstandingdefendant's declination to disburse said corporate income, the
trial court did not abuse its discretion in allocating to him
that amount of income earned by Stanly Farm corresponding to his
corporate interest. See Guidelines ([gross] income from [a] . .
. closely held corporation [is] . . . gross receipts minus
ordinary and necessary expenses); see also Barham v. Barham, 127
N.C. App. 20, 26, 487 S.E.2d 774, 778 (1997) (income of plaintiff
owning 50% of corporation included certain cash reserves
plaintiff had pledged to a creditor bank for business financing
because plaintiff had made the choice to encumber said reserves,
and as such the reserves were available to plaintiff), aff'd,
347 N.C. 570, 494 S.E.2d 763 (1998); Burnett, 128 N.C. App. at
177, 493 S.E.2d at 806 (no abuse of discretion by trial court to
include in defendant's gross income retirement accounts, stocks,
and land, because court must consider all available sources of
income); cf. Roth v. Roth, 406 N.W.2d 77, 79 (Minn. App. 1987)
(profits of subchapter S Corporation must be attributed to sole
shareholder and officer); Merrill v. Merrill, 587 N.E.2d 188,
190-91 (Ind. App. 1992) (retained earnings of Subchapter-S
corporation constituted profit attributable to defendant as
controlling shareholder).
Notwithstanding, defendant points to this Court's opinion in
Taylor v. Taylor, 118 N.C. App. 356, 455 S.E.2d 442 (1995), rev'd
on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996), and argues
the trial court should have considered only the income actually
received by defendant from Stanly Farm in its computation of his
gross income. Taylor is inapposite. First, defendant neglects to consider that the Guidelines
were not applicable in Taylor and that the court's award of child
support therein was derived solely from its conclusions as to
the amount of support necessary to meet the reasonable needs of
the child and the relative abilities of the parties to provide
that amount. See id. at 362, 455 S.E.2d at 447. The trial
court herein, however, was obligated to follow the Guidelines
which direct computation of an obligor's income based upon the
amount of his taxable income . . . from any source; which
amount may include potential income if [voluntarily] unemployed
or underemployed. Guidelines.
More significantly, unlike the instant record, no evidence
in Taylor indicated the obligor owned a controlling corporate
interest whereby he might have directed distribution of corporate
profits to his benefit. See Taylor, 118 N.C. App. at 358, 455
S.E.2d at 444. Defendant's reliance upon Taylor is thus
unavailing.
[2]Defendant next asserts the trial court erred in
determining the amount of income available to him through
[Stanly Farm] because the court did not take into consideration
the accrual accounting method utilized by Stanly Farm. According
to defendant,
[u]nder the accrual method of accounting,
income is accounted for when the right to
receive it is created. Thus, it is not the
actual receipt of the income but the right to
receive which results in an income entry.
Therefore, defendant continues, the accrual method creates
fictional income and the trial court can make no determinationof the income actually available to the [defendant].
While it appears no North Carolina authority directly
addresses the significance of the accrual method of accounting in
relation to an award of child support, accrual accounting figures
represent income which is taxable for federal tax purposes, see
26 U.S.C. § 446 (1998) and 26 U.S.C. § 61 (1998), and such
amounts are thus properly considered as gross receipts for
purposes of the Guidelines. See Guidelines (in determining gross
income, [a]ll income is assumed to be taxable). Further, in
determining an obligor's gross income derived from the latter's
interest in a closely held corporation, the trial court may in
its discretion allow appropriate adjustments upon careful[]
review[] of the income and expenses from self employment. See
id.; see also Lawrence v. Tise, 107 N.C. App. 140, 147, 419
S.E.2d 176, 181 (1992) (Guidelines . . . vest the trial court
with the discretion to deduct . . . straight line depreciation).
The trial court found that Stanly Farm at the end of its
1996 fiscal year had on hand a cash balance of $69,301.49, and
that [a]ll income after payment of taxes of Stanly Farm since
its inception in June of 1983 have been retained and the
accumulated retained earnings . . . [are] $470,676.20. Our
careful review of the record reveals that save for evidence of an
approximate $19,000.00 bad debt deduction in 1995, defendant
introduced no evidence tending to establish that percentage of
the annual gross income of Stanly Farm which typically comprised
bad debt, i.e., money Stanly Farm would never receive. Absent
evidence to the contrary, therefore, use of accrual figures inthe trial court's calculations herein was reflective of an
appropriate level of gross income available to the [defendant],
see Guidelines, and the trial court's reliance upon such accrual
figures was not manifestly unsupported by reason. See Kennedy,
107 N.C. App. at 700, 421 S.E.2d at 798.
[3]Defendant's third contention is that the court
fail[ed] to deduct from [the] income of
[Stanly Farm] the reasonable and necessary
expenses of depreciation and bad debt
incurred in an accrual accounting tax
computation.
This argument is also unpersuasive.
Under the Guidelines, the trial court is accorded the
discretion to discern those business expenses which are
inappropriate for determining gross income for purposes of
calculating child support. See Guidelines. In the case sub
judice, the trial court disallowed in the interest of justice
deductions of $71,886.68 in bad debt and $6,447.53 in
depreciation taken by Stanly Farm in 1996. The court stated in
its order that the bad debt d[id] not represent cash dollars
flowing out of Stanly Farm during 1996. The court also noted
that
[s]ince June 1, 1983, Stanly Farm . . . had
taxable income each calendar year, with the
exception of 1996, which tax return shows a
taxable income loss of $1,498.71.
In light of such findings, as well as those specifying the
retained earnings and cash on hand of Stanly Farm, we cannot say
the trial court's disallowance of Stanley Farm's claimed bad debt
and depreciation expenses in computing defendant's gross income
from the corporation was manifestly unsupported by reason. Kennedy, 107 N.C. App. at 700, 421 S.E.2d at 798.
[4]In a separate assignment of error, defendant argues the
trial court erred by not including in the income of the
[defendant] the losses from the Fun Park corporation.
Defendant's final argument has merit.
It is well established that
[e]ffective appellate review of an order
entered by a trial court . . . is largely
dependent upon the specificity by which the
order's rational is articulated. Evidence
must support findings, findings must support
conclusions; conclusions must support the
judgment. Each step of the progression must
be taken by the trial judge, in logical
sequence; each link in the chain of reasoning
must appear in the order itself. Where there
is a gap, it cannot be determined on appeal
whether the trial court correctly exercised
its function to find the facts and apply the
law thereto.
Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980).
In the case sub judice, the trial court's child support
order contains no reference to defendant's 100% ownership
interest in Fun Park. See Shaw, 125 N.C. App. at 528, 481 S.E.2d
at 369 ([a]ny judgment . . . setting an amount of child support
[is] dependent in significant part upon the amount of
[defendant's] income and the nature of his estate--whether
exclusively owned or controlled by defendant). We note
defendant introduced evidence tending to show that Fun Park
reported a loss in 1996 of $43,321.11. The business employed an
accelerated method of depreciation resulting in a 1996 deduction
of $39,725.13, the accelerated component being $26,377.50 and the
straight line component totaling $13,347.63. Although straight
line depreciation may be excluded from an obligor's gross incomein the court's discretion, see Tise, 107 N.C. App. at 147, 419
S.E.2d at 181, the trial court's order herein fails to reflect
its treatment of the Fun Park figures. For example, considering
only the straight line depreciation, the loss of Fun Park in 1996
might have totaled $16,953.61, or $3,595.98 without consideration
of depreciation in any amount. As such, the findings in this
regard are not sufficiently specific to indicate to this Court
whether the trial court properly applied the Guidelines in
computing [defendant's] gross income. Id. at 148, 419 S.E.2d
181.
Based on the foregoing, those portions of the trial court's
order purporting to compute defendant's gross income and award
child support thereon must be reversed. In addition, this matter
is remanded for additional findings regarding the income or loss,
if any, of defendant from Fun Park as well as re-computation of
defendant's gross income and entry of a new child support award
in light of such findings. On remand,
the trial court shall rely upon the existing
record, but may in its sole discretion
receive such further evidence and further
argument from the parties as it deems
necessary and appropriate to comply with the
instant opinion.
Heath v. Heath, __ N.C. App. __, __, 509 S.E.2d 804, 805 (1999).
Affirmed in part; vacated in part and remanded with
instructions.
Judges GREENE and TIMMONS-GOODSON concur.
*** Converted from WordPerfect ***