JAMES MITCHELL LEARY,
Plaintiff
v
.
SUSAN MULLIS LEARY,
Defendant
Henry T. Drake for plaintiff-appellant.
No brief filed by defendant-appellee.
WALKER, Judge.
Plaintiff and defendant were married on 25 November 1988 and
were separated on 8 June 1998. There were two children born of the
marriage. On 16 October 1998, plaintiff filed a complaint seeking
custody, child support, divorce from bed and board, and equitable
distribution. On 9 November 1998, defendant counterclaimed for
post-separation support, permanent alimony, equitable distribution,
and reasonable attorney's fees. On 20 October 2000, based upon his
income and his perceived needs of the children, plaintiff
petitioned the trial court to deviate from the North Carolina Child
Support Guidelines (Guidelines). Both parties filed affidavits of
financial standings with the trial court.
On 17 January 2001, the trial court heard evidence and
arguments of counsel on the issues of child support and attorney'sfees. All other matters were previously resolved through a consent
order. The trial court issued an order, signed 5 February 2001 and
filed 9 February 2001, which found the following in part:
8. That this Court has specifically reviewed
the incomes of the parties, the expenses of
the parties, and the reasonable needs of the
minor children.
9. That the Plaintiff has a gross monthly
income from his employment with Leary Brothers
Logging, Inc. of $2,816.64; that the Court
imputes to the Plaintiff as additional monthly
income the sum of $250.00 due to the fact that
the Plaintiff has the use and benefit of a
company vehicle pursuant to his employment,
and based on the fact that the Plaintiff
testified he has no personal vehicle and uses
the Company vehicle for all driving; the
Plaintiff's adjusted monthly adjusted gross
income is $3,066.64[.]
10. That the Defendant is employed by CMH
Flooring in Wadesboro, North Carolina, and has
a gross monthly income of $1,733.32.
11. The Plaintiff carries health insurance on
behalf of the minor children through his
employment at Leary Brothers Logging, Inc., at
no monthly expense to the Plaintiff.
12. That Plaintiff's and Defendant's combined
gross monthly income, rounded to the nearest
dollar is $4,801.00. The basic support amount
pursuant to the North Carolina Child Support
Guidelines is $997.00.
13. The Defendant pays for after school care
and summer care for the minor children at
Peachland Polkton after school program.
Seventy-five percent of the Defendant's
average monthly expense is $108.00.
14. The Court, based upon the evidence
presented, specifically declines to deviate
from the North Carolina Child Support
Guidelines in this case.
15. The Plaintiff earns sixty-three (63%) of
the total combined support, and the Defendantearns thirty-seven (37%) of the total combined
support.
16. The Plaintiff's share of monthly support
to be paid to the Defendant for the use and
benefit of the minor children is $706.00 per
month.
The trial court ordered the following in part:
1. The Plaintiff shall pay child support to
the Defendant for the use and benefit of the
minor children in the amount of $706.00 per
month....
3. The Plaintiff shall maintain health
insurance on behalf of the minor children.
4. The Plaintiff shall be responsible to pay
sixty-three percent of all uninsured medical
and dental expenses incurred on behalf of the
minor children....
In response to defendant's request for reasonable attorney's fees,
the trial court found and awarded the following in part:
17. The Defendant, since the entry of the
Order on temporary custody and child support,
has paid one-hundred percent of all day care
costs and uninsured medical expenses incurred
on behalf of the minor children.
18. The Defendant is still making monthly
payments for at least two medical bills
incurred by the children, with balances
outstanding to date.
20. The Defendant, based upon her payment of
all uninsured medical expenses for the
children for the past two years, and based
upon the fact that at least two such bills
have outstanding balances to be paid, does not
have the means or ability to pay her
reasonable attorney's fees.
21. The Plaintiff has the means and ability to
pay the Defendant's attorney's fees for the
establishment of permanent child support.
22. The Court finds that the sum of six
hundred dollars ($600.00) is a reasonable
attorney's fee, and such amount shall be paid
by the Plaintiff to attorney Donna B. Stepp at
the rate of $50.00 per month until paid in
full. Such payment is to be made monthly to
the Anson County Clerk of Superior Court for
dispersal to Donna B. Stepp until $600.00 is
paid in full.
Plaintiff first assigns error to the award of child support.
Child support orders entered by a trial court are accorded
substantial deference by appellate courts and our review is limited
to a determination of whether there was a clear abuse of
discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985). Under this standard of review, the trial court's ruling
“will be upset only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision.” Id. In a
case for child support, the trial court must make specific findings
and conclusions. Dishmon v. Dishmon, 57 N.C. App. 657, 660, 292
S.E.2d 293, 295 (1982). The purpose of this requirement is to
allow a reviewing court to determine from the record whether a
judgment, and the legal conclusions which underlie it, represent a
correct application of the law. Id. at 659, 292 S.E.2d 295.
Plaintiff contends the facts, as found by the trial court, are
not supported by competent evidence. Specifically, defendant
contends that the trial court erred in imputing $250.00 per month
to plaintiff's gross income since he had the benefit of the company
vehicle.
The Guidelines stipulate that “[e]xpense reimbursements or in-
kind payments received by a parent in the course of employment, self-employment, or operation of a business should be counted as
income if they are significant and reduce personal living expenses.
Such payments might include a company car....” N.C. Child Support
Guidelines, Annotated Rules of North Carolina 35 (2002). Here,
the record indicates that the vehicle driven by plaintiff was owned
by Leary Brothers Logging, Inc. (Leary Brothers). The record
further shows that Leary Brothers pays for the vehicle's
maintenance, insurance, and, according to plaintiff's testimony,
“around three hundred dollars for gas” monthly. Thus, there is
sufficient evidence to support the trial court's finding that
plaintiff's benefit of an all expense paid company vehicle was
worth $250.00 per month to him.
In addition, plaintiff contends the trial court failed to make
proper findings upon his request for a deviation from the
Guidelines. “Although section 50-13.4(c) and the Guidelines
require findings of fact only when the trial court deviates from
the Guidelines, effective appellate review also requires findings
to support a denial of a party's request for deviation.” Buncombe
County ex rel Blair v. Jackson, 138 N.C. App. 284, 288, fn. 7, 531
S.E.2d 240, 243, fn. 7 (2000).
Here, the trial court made findings as to the incomes of both
parties and the presumptive reasonable needs of the children. The
trial court was presented with affidavits of financial standings
from both parties. Plaintiff's affidavit reflected that the
reasonable needs of the children to be $765.00 per month. On the
other hand, defendant's affidavit reflected the reasonable needs ofthe children were in excess of $1,000.00 per month. The trial
court specifically declined to deviate from the Guidelines, finding
the presumptive support amount for the children to be $997.00 per
month. Plaintiff's share would be $706.00 per month. Thus, the
evidence supports the findings which in turn support the denial of
the request for deviation from the Guidelines.
Plaintiff next contends that the trial court failed to make
sufficient findings for the award of attorney's fees. The trial
court is permitted to exercise considerable discretion in allowing
or disallowing attorney's fees in child custody or support cases.
Brandon v. Brandon, 10 N.C. App. 457, 463, 179 S.E.2d 177, 181
(1971). Generally, an award of attorney's fees will be stricken
only if the award constitutes an abuse of discretion. Clark v.
Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67 (1980). N.C. Gen.
Stat. § 50-13.6 provides the following in part:
In an action or proceeding for the custody or
support, or both, of a minor child,...the
court may in its discretion order payment of
reasonable attorney's fees to an interested
party acting in good faith who has
insufficient means to defray the expense of
the suit. Before ordering payment of a fee in
a support action, the court must find as a
fact that the party ordered to furnish support
has refused to provide support which is
adequate under the circumstances existing at
the time of the institution of the action or
proceeding.
Our Courts have interpreted this provision as requiring that the
party seeking attorney's fees must allege and prove that it is an
interested party acting in good faith and has insufficient means to
defray the expenses. Hudson v. Hudson, 299 N.C. 465, 472, 263S.E.2d 719, 723 (1980). A party has insufficient means to defray
the expense of the suit when it is “unable to employ adequate
counsel in order to proceed as litigant to meet the other spouse as
litigant in the suit.” Id. at 474, 263 S.E.2d at 725. If the
action is for child support, there must be an additional finding
that “the party ordered to furnish support has refused to provide
support which is adequate under the circumstances existing at the
time of the institution or proceeding.” Id. at 472-73, 263 S.E.2d
at 724. Whether these statutory requirements are met is a question
of law, reviewable on appeal. Taylor v. Taylor, 343 N.C. 50, 54,
468 S.E.2d 33, 35 (1996).
Plaintiff contends there was insufficient evidence to support
the trial court's finding that defendant “does not have the means
or ability to pay her reasonable attorney's fees.” Based on
defendant's evidence, the trial court found that she had been
paying all of the uninsured medical expenses for the past two
years, and she had outstanding balances on those expenses at the
time of the hearing. We find there was sufficient evidence to
support the trial court's finding of defendant's inability to
defray the cost of this litigation.
Plaintiff further contends the trial court erred in failing to
find that he had refused to provide adequate support as required in
order to support an award of attorney's fees in a child support
case. The trial court found that the amount plaintiff had been
providing, prior to the hearing, was inadequate to support the
children and increased the award to $706.00. Thus, the trial courtsufficiently found that plaintiff had refused to provide adequate
child support.
A careful review of the record reveals the trial court
properly found that defendant was an interested party who had
insufficient means to defray the cost of litigation and her request
for attorney's fees was made in good faith. Thus, the trial court
did not err in awarding $600.00 as reasonable attorney's fees.
In conclusion, we find that the trial court's findings and
conclusions are sufficient to support its award of child support
and attorney's fees. The trial court did not err in denying
plaintiff's request for deviation from the Guidelines.
Affirmed.
Chief Judge EAGLES concurs.
Judge BIGGS concurs in part and dissents in part.
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