Child Support, Custody, and Visitation--support--earning
capacity--required findings
A child support order was reversed and remanded where the
trial court used earning capacity to determine the child support
obligation, but did not include any findings as to whether either
party deliberately suppressed his or her income to avoid support
obligations and a transcript of the hearing was not included in
the record on appeal. Earning capacity can be used to determine
child support only where there are findings based upon competent
evidence to support a conclusion that the supporting spouse or
parent is deliberately suppressing his or her income to avoid
family responsibilities.
Helms, Cannon, Henderson & Porter, P.A., by Thomas R. Cannon
and Christian R. Troy, for plaintiff-appellant.
No brief filed by defendant-appellee.
WALKER, Judge.
Plaintiff appeals from an order awarding defendant $591.00 per
month in on-going child support, support arrearages of $19,654.00
plus interest to be paid at $323.96 per month and attorney's fees
of $5,000.00 plus interest to be paid at $82.42 per month, in
addition to certain medical expenses and insurance.
The parties were married on 3 February 1983 and a child, Mykel
Elizabeth Bowers (Mykel), was born 7 September 1983. The parties
later separated and divorced. Mykel has lived with each parent for
various periods of time and was placed in residential care fromAugust, 1996 until August, 1998, as a result of being certified as
a “Willie M” class member.
Plaintiff filed this action on 3 April 1997 seeking custody of
Mykel. Defendant answered and counterclaimed on 1 May 1997 seeking
custody and child support pursuant to the terms of the custody and
separation agreement previously executed by the parties. The trial
court found that neither plaintiff nor defendant was gainfully
employed at the time of the hearing and calculated child support
based on each party's “earning capacity,” which was determined from
their last monthly salaries multiplied by twelve months.
In his first assignment of error, plaintiff contends the trial
court erred in awarding child support based upon each party's
“earning capacity” without a showing that there had been an
intentional or bad faith suppression of either party's income.
At the outset, we note “[a]bsent a clear abuse of discretion,
a judge's determination of what is a proper amount of [child]
support will not be disturbed on appeal. . . . 'A judge is subject
to reversal for abuse of discretion only upon a showing by the
litigant that the challenged actions are manifestly unsupported by
reason.'” Plott v. Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 868
(1985)(citations omitted).
In determining the amount of a child support obligation,
“[t]he judge must evaluate the circumstances of each family and
also consider certain statutory requirements[.]” Id. at 68, 326
S.E.2d at 867 (citation omitted). N.C. Gen. Stat. § 50-
13.4(c)(1999) sets forth the circumstances to be considered:
(c) Payments ordered for the support of aminor 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.
Thus, a determination of child support obligation amounts must be
made on a case by case basis. Plott, 313 N.C. 68, 326 S.E.2d 863.
In Plott, this Court articulated in great detail a trial court's
duty in this regard:
To comply with G.S. 50-13.4(c), the order for
child support must be premised upon the
interplay of the trial court's conclusions of
law as to the amount of support necessary 'to
meet the reasonable needs of the child' and
the relative ability of the parties to provide
that amount. To support these conclusions of
law, the court must also make specific
findings of fact so that an appellate court
can ascertain whether the judge below gave
'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.' Such
findings are necessary to an appellate court's
determination of whether the judge's order is
sufficiently supported by competent evidence.
If the record discloses sufficient evidence to
support the findings, it is not this Court's
task to determine de novo the weight and
credibility to be given the evidence contained
in the record on appeal.
Id. at 68-69, 326 S.E.2d at 867, quoting N.C. Gen. Stat. § 50-
13.4(c); Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189
(1980)(citations omitted). See also Dishmon v. Dishmon, 57 N.C.
App. 657, 292 S.E.2d 293 (1982)(holding that plaintiff's evidence
and trial court's findings of fact fell seriously short ofsupporting a court-ordered increase in child support payments).
Our Supreme Court has held that “earning capacity” to
determine child support can only be used where there are findings,
based on competent evidence, to support a conclusion that the
supporting spouse or parent is deliberately suppressing his or her
income to avoid family responsibilities. See Sharpe v. Nobles, 127
N.C. App. 705, 493 S.E.2d 288 (1997)(holding that father's failure
to look for higher paying job after his position was eliminated was
not deliberate suppression of income or other bad faith action,
and, thus, his former “earning capacity” could not be used to
impute income to him for determining amount of child support);
Ellis v. Ellis, 126 N.C. App. 362, 485 S.E.2d 82 (1997)(holding
that before “earning capacity” rule is imposed for purposes of
determining parent's child support obligations, it must be shown
that a parent's actions which reduced his or her income was not
taken in good faith); Atwell v. Atwell, 74 N.C. App. 231, 328
S.E.2d 47 (1985)(holding that “only when there are findings based
on competent evidence to support a conclusion that the supporting
spouse or parent is deliberately suppressing his or her income or
indulging in excessive spending to avoid family responsibilities,
can a party's capacity to earn be considered);” Whitley v. Whitley,
46 N.C. App. 810, 266 S.E.2d 23 (1980)(holding the trial court
erred in computing child support payment on plaintiff's capacity to
earn, as opposed to actual earnings because there was no evidence
to indicate that plaintiff intentionally suppressed his income to
avoid support obligations). In the instant case, although the trial court used “earning
capacity” to determine the child support obligation, its order does
not include any findings as to whether either party deliberately
suppressed his or her income to avoid his or her support
obligation. A transcript of the hearing is not included in the
record on appeal. Thus, we are unable to determine what evidence
was offered to show the circumstances under which plaintiff and
defendant were unemployed at the time of the hearing, or whether
plaintiff was deliberately suppressing his income or acting in
disregard of his obligation to provide support.
We therefore vacate the trial court's order and remand for a
further hearing at which time either party may offer additional
evidence on these issues raised in this appeal. We therefore need
not address the other issues raised on appeal.
Reversed and remanded.
Chief Judge EAGLES and Judge HUNTER concur.
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