1. Child Support, Custody, and Visitation--no changed circumstances--modification
improper
Having concluded that no changed circumstances justified modification of the prior
custody order, the trial court erred in modifying the terms of the custody order by requiring
plaintiff-mother to give defendant-father decision-making authority as to their child's schooling,
extracurricular activities, and travel.
2. Child Support, Custody, and Visitation--deviation from Guidelines--sufficient
findings of fact necessary
Although the trial court appears to have determined that deviation from the Child
Support Guidelines is appropriate due to defendant-father's disability, the trial court erred by
modifying child support without making sufficient findings of fact to determine: the appropriate
amount under the Guidelines, the child's reasonable needs, and that application of the
presumptive Guidelines amount would be “unjust or inappropriate.”
3. Child Support, Custody, and Visitation--disability check--not income
The trial court properly refused to consider defendant-father's disability check he
received on behalf of his child as his income in figuring his support obligation.
4. Child Support, Custody, and Visitation--disability check--parent with primary
custody--may support deviation from Guidelines
The trial court erred in failing to direct payment of defendant-father's disability check he
received on behalf of his child to plaintiff-mother because she is the custodial parent. However,
the receipt of these funds by the custodial parent may support a deviation from the Guidelines'
presumptive support amount to be paid by the non-custodial parent on the ground that the child
is receiving funds as a result of the obligor's disability.
Appeal by plaintiff from order filed 1 April 1998 by Judge
Gregory R. Hayes in Catawba County District Court. Heard in the
Court of Appeals 8 June 1999.
Daniel R. Greene, Jr., for plaintiff-appellant.
H. Kent Crowe, P.A., by H. Kent Crowe, for defendant-
appellee.
GREENE, Judge.
Donna Ellen Sain (Plaintiff) appeals from the trial court's
child custody and support order.
On 18 June 1992, the trial court entered an order awarding
Plaintiff and her ex-husband James Phillip Sain (Defendant) joint
custody of their minor child (Melissa). The order set
Defendant's child support obligation, provided that Plaintiff
would have primary custody of Melissa, and provided that
Defendant would have physical custody of Melissa every other
weekend during the school year and at additional times during
vacations and holidays. At that time, Defendant's gross monthly
income was $1,720.00, and Plaintiff's gross monthly income was
$726.00.
On 12 June 1997, Plaintiff filed a motion in the cause
seeking modification of the custody and support order. In her
motion, Plaintiff sought sole custody of Melissa, limitation of
Defendant's visitation privileges, and "adequate" child support.
Defendant filed a motion in the cause on 20 August 1997 seeking a
reduction in his child support obligation because he was no
longer able to work due to a disability, his income had decreasedto disability payments of $800.00 per month and "$412.00 per
month on behalf of the minor child as income,"
(See footnote 1)
and Plaintiff's
income had increased.
In February 1998, the trial court heard testimony from both
parties, ten-year-old Melissa, several counselors, Carol Blevins
(Blevins) and Sandra Robbins (Robbins) of the Department of
Social Services (DSS), and various other individuals. Melissa's
school counselor, who never noticed any unusual bruises on
Melissa, testified that Melissa would "say that her mother told
her she needed to come and see me" concerning allegations of
abuse and neglect by Defendant. Blevins testified that she had
investigated the allegations on behalf of DSS and that Melissa
"could not give me any clear details" to support the allegations.
Melissa was "very inconsistent" in her statements and would not
maintain "good eye contact" during the interviews. Blevins
further testified that "[n]o injuries ha[d] ever been observed by
DSS." Robbins had substantiated one report of neglect for DSS.
Robbins testified she "couldn't get a clear understanding from
either [Defendant or Melissa]" as to the circumstances supporting
the allegation, and that she found Melissa to be very bright andmanipulative. Robbins stated that Melissa had apparently "hit
[Defendant] with a belt" during an argument, and Defendant
acknowledged to Robbins that, in response to this behavior, he
had "grabbed [Melissa] and held her." Robbins testified that
although she did not consider this to be appropriate discipline,
"some psychologists . . . will actually give that as an option to
a parent."
Based on the evidence presented, the trial court found that
Melissa is "strong-willed," has become "the tail wagging the
dog," and that some of her testimony was "hard to believe." The
trial court made several findings to the effect that Plaintiff
had repeatedly attempted to manipulate Melissa in order to remove
Defendant from their lives. In addition, the trial court found
that Plaintiff had instigated, through her daughter, seven
separate DSS investigations of Defendant for abuse and neglect.
The trial court found that Melissa had given DSS "inconsistent
statements and answers . . . as to what had happened and how it
happened . . . [and] fluctuated in her answers, and . . . had no
good eye contact [with the DSS investigator]." DSS closed all
but one of these investigations without substantiating either
abuse or neglect. As to the one investigation substantiating
neglect based on Robbins' report, the trial court found the
neglect to be a "technical" violation, that it may have been an"accidental" occurrence, and that the DSS recommendation was only
for counseling to "try[] to prevent future reports [and to] get[]
everyone to get along." The parties and Melissa underwent
counseling pursuant to the DSS recommendation.
Based on these findings, the trial court concluded "[t]here
has not been a material and substantial change of circumstance
justifying a modification of the joint custody arrangement in
this matter, other than as stated hereinbelow." (emphasis added).
Nothing stated "hereinbelow" in the trial court's conclusions of
law relates to custody modification. The trial court then
ordered the following modification:
Defendant will consult with [Plaintiff], but
the final decisions in these particular areas
involving the minor child rests with
[Defendant]:
(A) Where the child is to go to school;
(B) Extracurricular activities that
the child will participate in; and
(C) Any out of state travel in which the
minor child will participate.
Consultation shall take into account
[Plaintiff's] interest, [Melissa's] interest
and the best interests of [Melissa].
As to each party's motions for a modification in Defendant's
child support obligations, the trial court found:
(12) [Plaintiff] had $13,000.00 income for 10months, then worked at a conference center
making $4,000.00 during the summer of 1997.
The child care is about $50.00 per week
during the summertime. . . .
. . . .
(14) [Defendant] is now totally disabled,
with disability income of $799.00 per month.
As a result of his total disability, he
received checks for $412.00 per month on
behalf of [Melissa]. He was declared
permanently disabled in February, 1997. He
ceased full-time employment in 1994, when the
company was sold. He has not worked part-
time, and had no income from August, 1994,
until February of 1997.
. . . In or about November of 1995,
[Plaintiff] began getting the Social Security
Administration to re-route the checks for
Melissa on the part of [Defendant's] social
security disability of $412.00 per month
directly to her. Worksheet B should be the
appropriate calculation of child support in
this matter. However, calculations being
made on Worksheet B results [sic] in what was
supposed to be joint custody. The income of
[Defendant] each month at this time does put
him in the poverty level. The parties have
income of $17,000.00 annually for
[Plaintiff], and $9,600.00 annually for
[Defendant]. The Court determines that the
social security checks which [Plaintiff] had
re-routed from the Social Security
Administration to her, being paid on behalf
of the minor child of now [$421.00] per
month, should be re-routed back to
[Defendant] to help him make the child
support payments.
There is no Worksheet B attached to the trial court's order or
included in the record on appeal. Based on these findings, the trial court concluded "[t]here
has been a material and substantial change of circumstance
justifying a modification of the child support ordered in this
matter." Accordingly, the trial court directed that Defendant
should receive the $421.00 disability check (paid "on behalf of"
Melissa), and reduced Defendant's child support obligation to
$95.00 per month.
The issues are whether: (I) there was a substantial change
in circumstances since entry of the prior custody order
justifying its modification; (II) the trial court's findings
justify deviation from the North Carolina Child Support
Guidelines (Guidelines); and (III) disability checks received for
the benefit of a child may warrant deviation from the Guidelines.
Plaintiff contends the evidence of neglect and abuse
required the trial court to conclude changed circumstances
existed affecting Melissa's welfare. We disagree.
The trial court "is vested with broad discretion in cases
involving child custody." Pulliam v. Smith, 348 N.C. 616, 624,
501 S.E.2d 898, 902 (1998). The trial court "has the opportunity
to see the parties in person and to hear the witnesses," Falls v.
Falls, 52 N.C. App. 203, 209, 278 S.E.2d 546, 551, disc. reviewdenied, 304 N.C. 390, 285 S.E.2d 831 (1981), and its findings
"turn in large part on the credibility of the witnesses," Brandon
v. Brandon, 132 N.C. App. 646, 652, 513 S.E.2d 589, ---, (1999).
Accordingly, where the trial court's findings of fact are
supported by competent evidence, they are binding on appeal.
Harris v. Harris, 51 N.C. App. 103, 105, 275 S.E.2d 273, 275,
disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981). The
trial court's findings must, in turn, support its conclusions of
law. Blanton v. Blanton, 40 N.C. App. 221, 225, 252 S.E.2d 530,
533 (1979).
In this case, the trial court heard both parties and Melissa
testify as to the allegations of abuse and neglect. In addition,
the trial court heard testimony that Plaintiff urged Melissa to
tell her school counselor that she was abused and neglected by
Defendant, and that DSS got "inconsistent statements" and poor
eye contact from Melissa when interviewing her concerning these
allegations. As to the one substantiated allegation of neglect,
Robbins testified that she did not get a "clear understanding" of
what had occurred, and that, although she did not personally
believe grabbing and holding a child was an appropriate
disciplinary measure, some psychologists did. This competent
evidence supports the trial court's findings that Plaintiff was
manipulating Melissa; that six of the seven allegations of abuseand neglect were unsubstantiated following DSS investigations;
and that the one instance of neglect which had been substantiated
was "technical" in nature and resulted only in a recommendation
for counseling (which the parties and Melissa underwent). These
findings, in turn, support the trial court's conclusion that no
change in circumstances affecting Melissa's welfare had been
shown. We therefore affirm the trial court's conclusion that no
changed circumstances affecting the welfare of the child exist.
[1]Plaintiff alternatively contends the trial court
erroneously modified the prior custody order without concluding
changed circumstances existed. We agree. The law is clear that
the trial court may not modify an existing custody order unless
changed circumstances affecting the welfare of the child are
shown. Pulliam, 348 N.C. at 619, 501 S.E.2d at 899. Having
concluded no changed circumstances justifying modification of the
prior custody order had been shown, the trial court was without
authority to modify the terms of the prior custody order.
Requiring Plaintiff to give Defendant final decision-making
authority as to Melissa's schooling, extracurricular activities,
and travel constituted modification of the prior custody order;
accordingly, we reverse the portion of the trial court's order
giving Defendant final decision-making authority in these areas.
The terms of the prior custody order therefore remain in fullforce and effect.
[2]Plaintiff next contends the trial court erred in
deviating from the Guidelines in modifying child support without
making sufficient findings of fact. We agree.
The child support amounts provided in the Guidelines are
presumptive. N.C.G.S. § 50-13.4(c1) (Supp. 1998). Deviation
from the Guidelines upon a party's request is permissible,
however, under proper circumstances, and will not be disturbed on
appeal absent a clear abuse of discretion. State ex rel. Fisher
v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593 (1998).
Deviation is essentially a four-step process. See N.C.G.S. § 50-
13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 31-43.
First, the trial court must determine the presumptive child
support amount under the Guidelines. N.C.G.S. § 50-13.4(c).
Second, the trial court must hear evidence as to "the reasonable
needs of the child for support and the relative ability of each
parent to provide support." Id. Third, the trial court must
determine, by the greater weight of this evidence, whether the
presumptive support amount "would not meet or would exceed the
reasonable needs of the child considering the relative ability of
each parent to provide support or would be otherwise unjust or
inappropriate." Id.; Child Support Guidelines, 1999 Ann. R. N.C.32 ("The Court may deviate from the Guidelines in cases where
application would be inequitable to one of the parties or to the
child(ren)."); Brooker v. Brooker, 133 N.C. App. 285, 290-91, 515
S.E.2d 234, ---, (1999). Fourth, following its determination
that deviation is warranted, in order to allow effective
appellate review, the trial court must enter written findings of
fact showing the presumptive child support amount under the
Guidelines; the reasonable needs of the child; the relative
ability of each party to provide support; and that application of
the Guidelines would exceed or would not meet the reasonable
needs of the child or would be "otherwise unjust or
inappropriate." N.C.G.S. § 50-13.4(c); Child Support Guidelines,
1999 Ann. R. N.C. 32.
In this case, nowhere in its order does the trial court
determine what the child support amount would be under the
Guidelines. The trial court also failed to make findings as to
Melissa's reasonable needs. Although the trial court appears to
have determined deviation from the Guidelines is appropriate due
to Defendant's disability, the trial court failed to make any
finding that the greater weight of the evidence establishes that
application of the presumptive Guidelines amount would be "unjust
or inappropriate" on this ground. Accordingly, we must remand
for entry of a new child support order. If the trial courtdetermines that deviation from the Guidelines is warranted, it
must make appropriate findings of fact therein.
[3]
[4]Finally, Plaintiff contends the trial court misapplied
the $421.00 disability check Defendant receives on behalf of
Melissa. Again, we agree.
The Guidelines provide:
Payments received for the benefit of the
child(ren) as a result of the disability of
the obligor are not considered in determining
the amount of the basic child support
obligation.
Child Support Guidelines, 1999 Ann. R. N.C. 33. The Guidelines
therefore prohibit the trial court from considering disability
payments received on behalf of a child as income in determining
the presumptive support amount. The Guidelines further provide:
[T]he Court should compare the obligor's
support obligation under the [G]uidelines
with the benefits received by the child(ren)
due to the obligor's disability, and
determine whether an award of child support
in addition to the child(ren)['s] disability-
related benefits is warranted.
Id. The Guidelines contemplate that disability payments received
for the benefit of the child are "received by" the child.
Accordingly, the parent with primary custody is entitled to the
disability payments received on behalf of the child. The receiptof these funds by the custodial parent may, however, support a
deviation from the Guidelines' presumptive support amount to be
paid by the non-custodial parent. Accordingly, the trial court,
after making proper findings to support deviation, may reduce the
obligor's child support obligation on the ground that the child
is receiving funds as a result of the obligor's disability. Cf.
Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 473
S.E.2d 6 (1996) (holding third-party contributions may be used to
support deviation from the Guidelines).
In this case, the trial court properly refused to consider
the $421.00 disability check Defendant receives on Melissa's
behalf as Defendant's income in figuring his support obligation.
The trial court erred, however, in allowing Defendant to receive
the $421.00 disability check for his own use. This money is
earmarked for Melissa's benefit, and, on remand, the trial court
should direct payment of the $421.00 disability check to
Plaintiff, the custodial parent. In light of Plaintiff's receipt
of this check, the trial court may determine deviation from the
Guidelines is warranted and, with proper findings, may reduce
Defendant's child support obligation.
We have thoroughly reviewed Plaintiff's remaining
contentions, and find them unpersuasive.
Affirmed in part, reversed in part, and remanded. Judges WYNN and MARTIN concur.
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