SCOTLAND COUNTY DEPARTMENT OF SOCIAL SERVICES, on behalf of
SHANNON C. POWELL,
Plaintiff
v
.
JOHN A. POWELL,
Defendant
Edward H. Johnston, Jr., P.A., by Edward H. Johnston, Jr., for
plaintiff-appellee.
Middleton & Mullins, LLP, by Ayn Muse Middleton, for
defendant-appellant.
THOMAS, Judge.
Defendant, John A. Powell, appeals from an order requiring him
to provide medical insurance coverage on his two minor children,
cover seventy-five percent of all their unpaid medical expenses and
pay the presumptive amount of child support.
He contends the trial court erred by: (1) not allowing him to
present evidence of third-party contributions to plaintiff, Shannon
C. Powell, and the children in support of his request for a
deviation from the North Carolina Child Support Guidelines; (2)
failing to make adequate findings of fact to justify application of
the presumptive child support amount after hearing evidence in
support of his request for a deviation; (3) failing to include as
income certain commissions earned by plaintiff as a salesrepresentative; (4) ordering the parties to submit financial
affidavits without affording each the opportunity to cross-examine
the other on the contents of the affidavits, and then relying
solely on plaintiff's affidavit when making findings regarding the
reasonableness of the children's expenses; and (5) ordering him to
pay the presumptive amount of support under the guidelines when the
evidence shows he assumed a disproportionate share of the costs of
the children's care and support. For the reasons herein, we
affirm.
The Powells were married on 15 June 1989, separated on 29
December 1998, and subsequently divorced. They have two children,
Christin and Kelsey Powell. During the summer of 1999, the parties
entered into a Parenting Agreement providing joint physical custody
of both children. Plaintiff contracted with the Scotland County
Child Support Enforcement Agency, which filed a complaint on 13
September 2000 to establish child support. Defendant answered and
also requested the establishment of child support under the child
support guidelines. Neither party sought a deviation from the
guidelines in their initial pleadings.
According to Child Support Worksheet B, which is used to
determine support when the parents have joint physical custody of
the children, defendant's presumptive child support obligation is
$349.00 per month. This figure takes into consideration that
defendant pays the children's health insurance premiums. The
worksheet indicates plaintiff earns a gross income of $1,365.00 per
month, and defendant earns a gross income of $3,745.00 per month. At the hearing, defendant attempted to elicit testimony
concerning plaintiff's earlier living arrangements with her
parents. Plaintiff objected, and the trial court ruled that such
evidence was not relevant because plaintiff and the children were
not living with her parents at the time of the hearing.
Plaintiff claimed she and the children began living with Amy
Stewart on McNair Avenue one month prior to the hearing and paid
$300.00 per month in rent and utilities. Before that, they lived
with plaintiff's parents for approximately six months. Plaintiff
and the children had also lived with her parents for approximately
four or five months on one other occasion following the parties'
separation. While plaintiff and the children lived with her
parents, she claims she paid "around" $300.00 in rent and utilities
and paid her mother $20.00 per week for child care. Plaintiff also
supplied food and clothes for herself and the children.
Plaintiff testified that she provided the children with
housing, clothing, food, school supplies, cheerleading supplies,
entertainment and gifts. She acknowledged that defendant provided
medical insurance coverage, piano lessons, and any amount not
covered by insurance for eye and dental care.
Defendant, meanwhile, testified that he provided for the
following: health insurance coverage (including medical, dental and
vision), school supplies, school field trips, school pictures,
bowling league fees, weekly church contributions, premiums on two
life insurance policies for each child, and a computer.
Following closing arguments, and prior to judgment, the trialcourt ordered the parties to submit financial affidavits. When
court resumed the following morning, defendant and defense counsel
were not present. Plaintiff's affidavit of expenses was received
into evidence and the trial court announced its judgment in open
court. Defendant's affidavit was received by the court that same
morning following recitation of the judgment.
In its order, the trial court made the following pertinent
findings of fact:
9. Defendant suffers no mental or physical
disability which would make him unfit for work
and is capable of employment; he is currently
employed with earnings of $3,745.00 per month
(this amount is based on gross pay for regular
employment of forty hours weekly and does not
include overtime).
10. Ms. Powell earns $1,365.00 monthly at
BellSouth.
11. Defendant provides medical insurance
coverage on the children through his
employment and the cost for the children's
coverage is $32.00 monthly.
. . .
14. A worksheet calculating the appropriate
child support in accord with State guidelines
was received in evidence and the support
amount per the State guidelines is $349.00 per
month from the Defendant.
15. Defendant is able to pay those sums set
out in the mandate portion of this order and
said sums are reasonable and in conformity
with State guidelines.
16. There was no evidence received which would
constitute the basis for a deviation from the
State guidelines.
17. The Court received into evidence and
reviewed Shannon C. Powell's "Affidavit of
Income, Assets and Expenses" which is anitemized list of monthly expenses for Ms.
Powell and more particularly for these
children and the Court finds these children's
expenses to be customary, reasonable, not
excessive or extraordinary, and supportive of
an adequate basis for the imposition of the
support obligations of the Defendant contained
in the mandate.
. . . .
The court then ordered defendant to pay the presumptive amount
of $349.00 per month in support for his two children, provide and
maintain medical insurance coverage on the children, and pay
seventy-five percent of all unpaid medical expenses of the
children.
Defendant first contends the trial court erred in not allowing
him to present evidence of third-party contributions to plaintiff
and the children in support of his request for a deviation from the
child support guidelines. Specifically, he argues the trial court
erred in sustaining plaintiff's objection to the relevancy of
evidence regarding support she and the children received while
living with her parents. Plaintiff counters by arguing that
defendant failed to make a timely request or motion for deviation
from the guidelines.
N.C. Gen. Stat. § 50-13.4(c) (2001) provides: "[t]he court
shall determine the amount of child support payments by applying
the presumptive guidelines[.]" See also State ex rel. Fisher v.
Lukinoff, 131 N.C. App. 642, 645, 507 S.E.2d 591, 593-94 (1998).
However, the trial court may deviate from the presumptive amount
"upon request of any party" that the trial court hear evidence and
find facts "relating to the reasonable needs of the child forsupport and the relative ability of each parent to provide
support." N.C.G.S. § 50-13.4(c); see Browne v. Browne, 101 N.C.
App. 617, 623, 400 S.E.2d 736, 740 (1991). Following such request
and hearing, the trial court may deviate from the presumptive
guidelines if:
after considering the evidence, the [c]ourt
finds by the greater weight of the evidence
that the application of the guidelines 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. . . .
N.C.G.S. § 50-13.4(c).
Absent a request by a party, the trial court is not required
to take evidence, make findings of fact, or enter conclusions of
law "relating to the reasonable needs of the child for support and
the relative ability of each parent to [pay or] provide support."
Browne, 101 N.C. App. at 624, 400 S.E.2d at 740 (quoting N.C.G.S.
§ 50-13.4(c)). The party seeking a variance from the guidelines is
required to give advance notice of such request. Id. If the
advance notice is not contained in the original pleadings, it must
be given at least ten days prior to the hearing. Id. Absent a
proper request for variance, the trial court is only required to
hear such evidence as may be necessary for proper application of
the presumptive guidelines as adopted by the Conference of Chief
District Court Judges. Id. Absent a request for variation,
support consistent with the guidelines "is conclusively presumed to
be in such amount as to meet the reasonable needs of the child for
health, education and maintenance." Id. Here, neither party requested a deviation in their initial
pleadings. However, at the hearing, defendant attempted to elicit
evidence concerning plaintiff's pre-hearing living arrangements
with her parents. Defendant asked the trial court to consider such
evidence in support of his request to deviate from the presumptive
guidelines.
Although the trial court initially ruled that such evidence
was irrelevant because plaintiff and the children no longer lived
with her parents, similar evidence was subsequently admitted,
without objection, on cross-examination of plaintiff. In addition,
both parties introduced, without objection, other evidence of the
children's needs and the parties' relative ability to provide
support. Therefore, any failure by defendant to give timely and
proper notice of his request for a deviation from the presumptive
guidelines was waived. See Gowing v. Gowing, 111 N.C. App. 613,
617, 432 S.E.2d 911, 913 (1993); Browne, 101 N.C. App. at 624, 400
S.E.2d at 741.
In Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 473
S.E.2d 6 (1996), our Supreme Court held that contributions and
support from third-parties may be considered when determining
whether to deviate from the child support guidelines. Id. at 172,
473 S.E.2d at 9. While such third-party contributions will not
always support deviation, the trial court should have such evidence
at its disposal to "examine the extent and nature of the
contributions in order to determine whether a deviation from the
guidelines is appropriate[.]" Id. at 171, 473 S.E.2d at 9. Defendant relies on Guilford County in arguing that the trial
court erred in sustaining plaintiff's objection to evidence of the
children's pre-hearing living arrangements with her parents.
However, in Guilford County, the evidence showed that the
plaintiff-father and the children were living in a house owned by
the maternal grandparents at the time of the hearing. The maternal
grandparents paid the water bill and did not charge plaintiff rent.
The children also spent a great deal of time at their grandparents'
home and the grandparents provided for other needs of the children
including clothing, haircuts, and medical bills. Id. at 168, 473
S.E.2d at 7.
Here, however, the evidence shows plaintiff and the children
were not living with her parents at the time of the hearing. They
had moved out approximately one month earlier. Thus, the trial
court correctly ruled such evidence irrelevant. Nonetheless,
plaintiff later testified on cross-examination to the two occasions
during which she and the children lived with her parents.
Plaintiff provided details of the living arrangements with her
parents, including the fact she paid $300.00 per month in rent and
utilities and paid her mother $20.00 per week to keep the children.
Thus, the evidence defendant sought to introduce concerning alleged
third-party support, although properly excluded initially, was in
fact introduced and explained in detail by plaintiff on cross-
examination. Accordingly, defendant's first assignment of error
lacks merit.
Defendant next contends the trial court failed to makeadequate findings of fact to support application of the presumptive
child support amount after hearing evidence in support of
defendant's request for a deviation. We disagree.
Since a hearing was conducted and evidence presented relating
to the reasonable needs of the children and the relative ability of
each parent to provide support, the trial court was required to
find facts and enter conclusions on the evidence. Browne, 101 N.C.
App. at 623, 400 S.E.2d at 740. In finding facts, the trial court
was required to consider:
the reasonable needs of the child[ren] for
health, education, and maintenance, having due
regard to the estates, earnings, conditions,
accustomed standard of living of the
child[ren] and the parties, the child care and
homemaker contributions of each party, and
other facts of the particular case.
N.C.G.S. § 50-13.4(c1); see State ex rel. Fisher, 131 N.C. App. at
645, 507 S.E.2d at 594. The trial court's conclusion whether to
deviate from the presumptive amount of child support was required
to be based on "factual findings specific enough to indicate to
[this Court] that the judge below took 'due regard' of the
particular 'estates, earnings, conditions, [and] accustomed
standard of living' of both the child[ren] and the parents." Coble
v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (quoting
N.C.G.S. § 50-13.4(c)) (emphasis in original).
In the case sub judice, the trial court made specific findings
of fact as to the reasonable needs of the children and the relative
ability of each party to provide support. The findings of fact
here are adequate to indicate the trial court based its conclusionnot to deviate from the guidelines on the interplay between (1) the
amount of support necessary to meet the reasonable needs of the
children and (2) the relative ability of the parties to provide
that amount. See State ex rel. Fisher, 131 N.C. App. at 646, 507
S.E.2d at 594; Atwell v. Atwell, 74 N.C. App. 231, 234, 328 S.E.2d
47, 49 (1985). Accordingly, we hold the trial court did not err in
awarding the presumptive amount of child support called for under
the guidelines.
Defendant next contends the trial court erred in failing to
include in plaintiff's income certain commissions she earned as a
sales representative for Avon.
The trial court found that plaintiff earned $1,365.00 per
month working at BellSouth. This was the amount used on Worksheet
B. In her testimony, plaintiff indicated she had been selling Avon
products for two weeks, that her commission was "ten or twenty
percent," and she would "probably" make $20.00 per week. In her
financial affidavit, plaintiff listed $15.00 per week as income
from selling Avon. However, plaintiff also said her supplies would
cost "more than that." It is not clear from her testimony whether
she was comparing her cost to the $100.00 in sales or her ten to
twenty percent commission. Plaintiff also testified she had yet to
receive a commission check for selling Avon products. The trial
court did not err in deciding not to include as income any amount
for plaintiff's sale of Avon due to its speculative nature.
Defendant next contends the trial court erred in ordering the
parties to submit financial affidavits without allowing them tocross-examine one another on the contents of the affidavits, and
then solely relying on plaintiff's affidavit in finding that the
children's expenses were reasonable. We disagree.
After each party was ordered to submit financial affidavits,
the trial court indicated it did not intend to receive any
testimony the next morning related to the affidavits. The parties
were then asked if there was anything else they wished to address
and neither party responded. When court reconvened the following
morning, defendant and defense counsel were absent and no objection
had been entered, orally or in writing, to the trial court's stated
intentions. The trial court then received plaintiff's financial
affidavit and entered its ruling in open court. Defendant's
affidavit was received later that morning.
Defendant had ample opportunity to make known to the trial
court his objection to the procedure and his desire to cross-
examine plaintiff. Having failed to do so, he is precluded from
raising such issue on appeal and we reject the assignment of error.
Defendant next contends the trial court erred in ordering him
to pay the presumptive amount of support when the evidence shows he
assumed a disproportionate share of the cost of the children's care
and support. We disagree.
The instructions for completing Child Support Worksheet B
(joint or shared custody) state: "[t]o the extent that one parent
assumes a disproportionate share of costs . . . the worksheet
should not be used or should be modified accordingly." Here,
defendant introduced canceled checks and receipts as evidence ofsupport provided by him from February 1999 to February 2001.
Nonetheless, the trial court found "defendant has failed to
adequately contribute to the support and maintenance of his named
children." This constitutes a finding that defendant did not
assume a disproportionate share of the children's costs.
Accordingly, the trial court did not err in using Worksheet B and
ordering defendant to pay the presumptive amount of child support.
Defendant's remaining assignments of error are deemed
abandoned since they are not argued or supported in his brief.
N.C.R. App. P. 28(b)(6) (2001).
For the reasons discussed herein, we affirm the trial court's
order of child support.
Affirmed.
Chief Judge EAGLES and Judge TYSON concur.
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