BUNCOMBE COUNTY, on behalf of ANGELIA A. FRADY,
Plaintiff,
v
.
DAVID B. ROGERS,
Defendant.
Buncombe County Child Support Enforcement Agency, by Susan E.
Wilson, for plaintiff-appellee.
Michael E. Casterline, for defendant-appellant.
HUDSON, Judge.
Defendant appeals from an order requiring him to pay child
support and procure health insurance, if it is available to him
through his employment, for his minor child, Alexandria Frady. We
affirm in part and vacate in part and remand for further
proceedings.
Defendant is the natural father of four daughters: Savannah,
Stephanie, Alexandria, and Lisa, each of whom has a different
mother. Defendant is under a current court order to pay child
support in the amount of $143.00 per month for Savannah.
Stephanie's mother testified that she and Defendant have an
agreement, which is not part of a court order, pursuant to which
Defendant pays Stephanie's mother $54.00 per week, or $216.00 per
month, for Stephanie's support; Stephanie lives with Defendant onthe weekends. Support for Alexandria is the subject of the current
action. Lisa, a newborn, and Lisa's mother currently reside with
Defendant. Defendant testified that he has signed an agreement,
which was “submitted to Haywood County” to be “signed by a judge,”
pursuant to which he will pay $121.00 per month for health
insurance for Lisa. The record does not reflect the source of this
insurance.
Kelly Williams, a child support worker, completed Worksheet A
of the North Carolina Child Support Guidelines to be used at the
hearing before the district court. See Annotated Rules of North
Carolina 46-47 (2001). According to Worksheet A, at the time of
the hearing, Defendant's gross monthly income was $1,386.56.
Defendant was credited with $197.88 for support of two children
living in his home; this amount, together with $143.00, Defendant's
court-ordered support payment for Savannah, was subtracted from
Defendant's gross monthly income, resulting in a monthly adjusted
gross income of $1,045.68. Using the Child Support Schedule,
Williams calculated $193.12 as the child support obligation amount,
and she entered $193.00 as the recommended child support order.
Defendant did not file a motion for deviation from the
Guidelines. The court ordered Defendant to pay $193.00 per month.
Additionally, the order provided: “Defendant to maintain insurance
when available through employment.” Defendant appeals this order.
Defendant first contends that the district court erred in
failing to deduct from his monthly gross income the amount of child
support he voluntarily pays each week on behalf of his minor child,Stephanie. We disagree.
Child support payments are required “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.” N.C. Gen. Stat. § 50-13.4(c) (1999). When the
court orders payments that are consistent with the North Carolina
Child Support Guidelines (the “Guidelines”), these payments are
presumed to “meet the reasonable needs of the child and [to be]
commensurate with the relative abilities of each parent to pay
support.” Buncombe County ex rel. Blair v. Jackson, 138 N.C. App.
284, 287, 531 S.E.2d 240, 243 (2000). The trial court may deviate
from the Guidelines upon a timely request by one of the parties,
after engaging in a four-step process. See id.
The Guidelines provide that “[t]he amount of child support
payments actually made by a party under any pre-existing court
order(s) or separation agreement(s) should be deducted from the
party's gross income.” Ann. R. N.C., at 35. There is no provision
for deducting the amount of voluntary child support payments.
Here, Defendant does not make child support payments for
Stephanie pursuant to a court order or settlement agreement.
Moreover, Defendant was given credit for supporting Stephanie as a
minor child living with Defendant. The amount the court used for
Defendant's monthly adjusted gross income, which resulted in an
amount of $193.00 as his child support obligation for Alexandria,is thus consistent with the Guidelines. Defendant did not file a
motion to deviate from the Guidelines. Hence, we find no abuse of
discretion in this part of the court's order.
Defendant next argues that the trial court erred in ordering
him to pay health insurance costs for Alexandria. Specifically, he
argues that the court failed to make findings of fact regarding
whether insurance was available at a reasonable cost. We agree
with Defendant that the court erred in failing to make proper
findings in this regard.
By statute, the court must order
the parent of a minor child or other
responsible party to maintain health insurance
for the benefit of the child when health
insurance is available at a reasonable cost.
As used in this subsection, health insurance
is considered reasonable in cost if it is
employment related or other group health
insurance, regardless of service delivery
mechanism.
N.C. Gen. Stat. § 50-13.11(a1) (1999). Pursuant to this statute,
insurance that can be obtained through employment is presumptively
reasonable in cost. However, the statute anticipates that a party
may have access to insurance that is reasonable in cost, other than
insurance that is available through employment. Before ordering a
party to obtain health insurance, the trial court must make the
determination whether insurance is available to the party at a
reasonable cost. See Jackson, 138 N.C. App. at 291, 531 S.E.2d at
245.
Here, as in Jackson, the trial court made no findings at all
as to whether insurance was available to Defendant, and, if so, atwhat cost. The court's order does not address whether Defendant
had access to insurance outside of his employment, but provides
only: “Defendant to maintain insurance when available through
employment.” This is a conditional order: if the Defendant has
access to insurance through his employment, then he is ordered to
obtain insurance for Alexandria. It leaves it to the parties to
make the determination whether Defendant has access to insurance
through his employment.
It is the court's responsibility to make the factual finding
that Defendant does or does not have access to insurance through
his employment. Additionally, if Defendant does not have access to
insurance through his employment, then the court must determine if
Defendant can procure insurance for his minor child in some other
way at a reasonable cost. Accordingly, we remand for further
findings of fact regarding whether Defendant is able to obtain
health insurance for Alexandria at a reasonable cost.
Affirmed in part, vacated in part and remanded.
Judges TIMMONS-GOODSON and TYSON concur.
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