Child Support, Custody, and Visitation_-support_-effective date of order
The trial court abused its discretion in a child support case by
setting the effective date of its order as 1 May 2000 as opposed to January 1999, the first month
after the filing of the complaint, and the case is remanded to the trial court for findings of fact
concerning the propriety of an award of prospective child support from the date of the filing of
the complaint.
Attorney General Michael F. Easley, by Associate Attorney
General Sonya M. Allen, for the State.
No brief for defendant appellee.
McCULLOUGH, Judge.
On 11 April 2000, a hearing was held to establish paternity
and child support for the minor child, Cordell Ballard Smith, Jr.
Evidence for the State showed that Brenda Miller and defendant,
Ivory Hinton, went to junior high school together in Gates County,
North Carolina. Ms. Miller saw defendant at a club in November
1985; around 21 November 1985, they engaged in sexual relations.
Defendant and Ms. Miller had sexual relations at least two more
times in November and December 1985.
On 8 September 1986, Ms. Miller gave birth to Cordell Ballard
Smith, Jr. Ms. Miller wrote defendant a note approximately eight
months after the child was born to inform defendant that he was the
baby's father. Defendant and Ms. Miller later had a telephoneconversation, during which defendant acknowledged that he was the
father of Ms. Miller's son. However, the child's birth certificate,
which was filed on 16 September 1986, listed Cordell Ballard Smith
as the father. Ms. Miller initially believed Mr. Smith was the
biological father of her child because she and Mr. Smith were
engaged in a sexual relationship prior to and after Ms. Miller's
relationship with defendant. Their relationship was suspended from
January 1985 to January 1986 because Mr. Smith was in prison.
During that time, Ms. Miller became involved with defendant.
The Gates County Child Support Enforcement Agency initiated an
action for paternity and child support on behalf of Ms. Miller and
her son. In March 1998, genetic testing confirmed that Mr. Smith
was not the biological father of the child; as a result, no further
action was taken against him. On 25 November 1998, Ms. Miller
filed a complaint, alleging that defendant was the father of her
child. Genetic tests performed in February 1999 showed a 99.62%
probability that defendant was the biological father of Cordell
Ballard Smith, Jr.
On 17 June 1999, a hearing was held to adjudicate paternity,
establish child support, recover past public assistance, provide
medical insurance for the child, initiate wage withholding and
trade line reporting, and recover the costs of the action. When
defendant failed to timely file an answer or other responsive
pleading and did not appear to defend the action, the trial court
entered a default order for paternity and child support against
him. In the default order, defendant was adjudicated the natural
biological father of the child and was ordered to pay child supportin the amount of $324.00 per month, effective 1 July 1999. The
default order was filed on 4 August 1999. However, the default
order was set aside by stipulation of the parties on 13 January
2000 because there was legitimate confusion on the part of
defendant regarding whether he was to appear in court on 17 June
1999. Evidence in the form of affidavits revealed that defendant
received contradictory correspondence from the Gates County Child
Support Office which reasonably led him to believe the 17 June 1999
hearing had been continued.
On 20 December 1999, defendant filed a "Notice to Deviate from
Child Support Guidelines," requesting that the trial court deviate
from the child support guidelines (Guidelines) and conduct an
evidentiary hearing on the needs of the minor child and the ability
of the parties to pay child support. At the hearing, Ms. Miller,
defendant, and Gina Mizelle, an employee of the Albemarle Child
Support Enforcement Agency, testified. Ms. Miller testified that
defendant was the father of her child and had acknowledged him
during his infancy, while defendant testified that he did not
remember Ms. Miller and did not know the minor child. Defendant
stated that he moved to New York in December 1986 and lived there
for two years with his aunt. He also testified that he had never
visited the minor child or given him gifts. Ms. Mizelle testified
about the genetic test results and the calculation of child
support.
After considering the evidence, the trial court found that
defendant was the biological father of the minor child, Cordell
Ballard Smith, Jr. The trial court also found that deviation fromthe Guidelines was warranted, and ordered defendant to pay $150.00
per month. The trial court further noted that defendant had paid
$1,621.35 in child support before the 17 June 1999 order was set
aside, and gave him a credit for that amount by ordering that the
money be applied to the child support obligation established in its
order. Defendant's child support obligation was ordered to commence
effective 1 May 2000. The State appealed.
In its sole assignment of error, the State contends the trial
court committed reversible error when it set the effective date of
its order as 1 May 2000 as opposed to January 1999, the first month
after the filing of the complaint. Specifically, the State argues
the trial court failed to consider the weight of the evidence and
failed to make adequate findings of fact to support its conclusions
that a deviation from the Guidelines was proper and not award
child support from the filing of the complaint. For the reasons
set forth, we agree and reverse and remand the case for further
findings of fact regarding the propriety of an award of prospective
child support.
When considering the propriety of the trial court's deviation
from the Guidelines, we employ an abuse of discretion standard.
Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). The
trial court's "determination as to the proper amount of child
support will not be disturbed on appeal absent a clear abuse of
discretion, i.e. only if 'manifestly unsupported by reason.'"
State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507
S.E.2d 591, 593 (1998). "Thus, to determine whether the trialcourt abused its discretion in computation of a child support award
deviating from the Guidelines, its findings of fact must show
justification for the deviation and a basis for the amount
ordered." Fisher, 131 N.C. App. at 644-45, 507 S.E.2d at 593; see
also Gowing v. Gowing, 111 N.C. App. 613, 618-19, 432 S.E.2d 911,
914 (1993). Guidance is provided in Sain v. Sain, 134 N.C. App.
460, 517 S.E.2d 921 (1999), where deviation is described as a four-
step process:
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." 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." ("The Court may deviate from
the Guidelines in cases where application
would be inequitable to one of the parties or
to the child(ren).")[.] 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."
Id. at 465-66, 517 S.E.2d at 926 (citations omitted).
In its order, the trial court made the following findings of
fact:
9. Relator
[Ms. Miller] is presentlyunemployed but has the capability of
earning a monthly gross income of $893.00
per month.
10. The monthly fina
ncial needs for the
maintenance and support of the minor
child Cordell B. Smith Jr. are $250.00.
11. The total monthly needs of the relator
and her other four children, excluding
the monthly needs of relator's husband,
are $637.68.
12. The relator rece
ives $204.00 per month in
food stamps.
13. The relator test
ified that her husband
earned more than $1000.00 per month but
that she did not know her husband's gross
monthly income.
14. Defendant is emp
loyed at MCI World Com in
Virginia and earns a gross monthly income
of $1906.30.
15. The total monthl
y needs of the defendant,
defendant's wife and infant child are
$2000.00 per month.
16. Defendant is obl
igated by a Virginia
Child Support Order to pay child support
for another child not living in his home
in the amount of $363.00.
17. After statutory
and voluntary deductions
are withheld from defendant's paycheck he
has a total monthly net income of
$894.00.
18. Defendant's rent
for his family residence
is $700.00 per month.
19. Defendant has a
one year old infant child
in his home. Defendant's wife is not
currently employed as she stays at home
to care for defendant's infant child.
20. Defendant incurs
$73.00 per month in
health insurance expense each month for
the minor child Cordell B. Smith Jr.
21. Under the curren
t applicable child
support guidelines in effect in the State
of North Carolina the recommended amountof support that defendant should pay as
his share of support for Cordell B. Smith
Jr. is $221.00 as shown by Worksheet A
which was admitted into evidence as
plaintiff's Exhibit 3.
22. Neither defendan
t nor relator have the
means or ability to pay their share of
the recommended child support as
determined, under the child support
guidelines, for the minor child Cordell
B. Smith Jr.
23. On June 17, 1999
an Order adjudicating
paternity and establishing child support
was entered by the Honorable C.
Christopher Bean District Court Judge.
Said Order required defendant via
immediate income withholding to pay child
support in the sum of $324.00 per month.
On August 11, 1999 defendant filed a
Motion under Rule 60 of the North
Carolina Rules of Civil Procedure to set
aside the June 17, 1999 Order. On
January 8, 2000 Judge Bean entered an
Order setting aside his June 17, 1999
Order adjudicating paternity and
establishing child support. That during
the time that Judge Bean's June 17, 1999
Child Support Order was in effect
defendant paid, by income withholding,
the sum of $1621.35 as child support for
Cordell B. Smith Jr. Defendant requested
a refund or credit of child support paid
prior to the entry of this Order.
24 24. &
nbsp; Plaintiff requested that the Court award
child support effective January 1, 1999,
the first month after the filing of the
Complaint.
The trial court then concluded, as a matter of law:
3. That based on the
gross income of the
defendant and relator, the reasonable
needs of the minor child, the reasonable
needs of the relator and her four other
minor children, the reasonable needs of
the defendant, and upon consideration of
the current financial circumstances of
the defendant and relator, deviation from
the recommended child support amount
under the current child support
guidelines is warranted and reasonableand the Court should deviate from the
child support guidelines and establish
child support in the sum of $150.00 per
month.
4. That the defendan
t has available to him,
through his employment medical insurance
for the minor child Cordell B. Smith Jr.;
it is reasonable for the defendant to
maintain medical insurance on said child
and therefore defendant should be
required to maintain health insurance on
the minor child as long as the same is
available to him through his employment.
5. That the defendan
t should be entitled to
a credit of $1621.35 for support payments
made until Judge Bean's June 17, 1999
child support Order was set aside. That
said credit should be applied to the
child support obligation established in
this Order.
6. That the defendan
t's child support
obligation should commence effective May
1, 2000.
The findings of fact made by the trial court in the present
case are similar in scope and vein to the findings of fact made by
the trial court in Fisher. In Fisher, the trial court made several
findings of fact which discussed the parties' income and debts, as
well as the presumptive Guideline amount. Fisher, 131 N.C. App. at
643-44, 507 S.E.2d at 593. The trial court deviated from $505.00
per month, the Guideline amount, to $50.00, and declined to award
child support from the time the complaint was filed to the date of
the trial. Id. In reversing the trial court, the Fisher Court
stated:
[T]he court's findings lack the
specificity necessary to justify its deviation
from the presumptive Guidelines. While the
trial court made findings relating to child
care contributions, health insurance costs,and the relative ability of each party to pay,
it failed to include any findings regarding
[the child's] reasonable needs, including his
education, maintenance, or accustomed standard
of living . . . .
Id. at 646, 507 S.E.2d at 594. Although the parties in the present
case do not dispute the amount of child support awarded, we
nonetheless find Fisher instructive regarding the implied
presumption that child support payments should begin at the time
the complaint was filed. After careful examination of the record,
we conclude that the trial court in the present case made the same
error as the trial court in Fisher, in that the trial court
provided no rationale as to why the child support award did not
begin at the filing of the complaint. Unless the trial court finds
that beginning the prospective child support payments on the date
the complaint was filed would be "unjust or inappropriate" and
there is evidence in the record to support this finding, it is
error to order prospective support to begin at any other time. See
Sain, 134 N.C. App. 460, 517 S.E.2d 921; and Fisher, 131 N.C. App.
642, 507 S.E.2d 591.
We thus agree with the State's argument that the trial court
erred in failing to explain why it did not award child support from
the filing of the complaint. Prospective child support includes
the portion of the child support award representing "that period
from the time a complaint seeking child support is filed to the
date of trial." Taylor v. Taylor, 118 N.C. App. 356, 361, 455
S.E.2d 442, 446 (1995), rev'd on other grounds, 343 N.C. 50, 468
S.E.2d 33 (1996). N.C. Gen. Stat. § 50-13.4(c) applies toprospective child support and requires application of the
Guidelines to arrive at an appropriate award. Taylor, 118 N.C.
App. at 362, 455 S.E.2d at 446; see also Shaw v. Cameron, 125 N.C.
App. 522, 527, 481 S.E.2d 365, 368 (1997).
We therefore remand to the trial court for findings of fact
concerning the propriety of an award of prospective child support
from the date of the filing of the complaint. See N.C. Gen. Stat.
§ 50-13.4(c); Taylor, 118 N.C. App. at 362-63, 455 S.E.2d at 446-
47.
Reversed and remanded.
Judges GREENE and CAMPBELL concur.
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