1. Child Support, Custody, and Visitation_support_prior consent order_income of
new spouse_not considered
The income of plaintiff's new husband was properly excluded as irrelevant in a post-
majority support action because the plain language of the consent order obligated only the
parties.
2. Child Support, Custody, and Visitation_support--post-majority_college
enrollment_findings
The court's finding in a post-majority child support action that one of the children was
enrolled in college classes at the time of trial was supported by the evidence.
3. Child Support, Custody, and Visitation_support_psychological and medical
expenses_prior consent order
The court did not abuse its discretion in a post-majority support action by ordering
defendant to reimburse plaintiff for medical, psychological, and psychiatric expenses which
defendant had refused to pay in violation of the plain language of the parties' consent order.
4. Child Support, Custody, and Visitation_support_post-majority_college
expenses_ability to pay_methodology
The trial court's methodology for determining the parties' ability to pay college expenses
in a post-majority child support action was not unsupported by reason and was not an abuse of
discretion.
Baucom, Claytor, Benton, Morgan and Wood, P.A., by Richard F.
Kronk, for defendant-appellant.
Perry, Bundy, Plyler & Long, L.L.P., by H. Ligon Bundy, for
plaintiff-appellee.
ELMORE, Judge.
Paul Schultze (defendant) appeals from a judgment requiring
him to pay his ex-wife Brigitte G. Helms (plaintiff) the principalamount of $76,758.48 as reimbursement for plaintiff's overpayment
of certain college and medical expenses incurred by their two sons,
which expenses were anticipated and deemed the responsibility of
the parties by a previous court order entered several years earlier
in connection with the parties' divorce. For the reasons discussed
herein, we affirm.
Plaintiff and defendant were married on 27 November 1976. Two
children were born of their marriage: Greg, born 13 November 1977,
and Pierre, born 30 April 1979. While living in Connecticut, the
parties separated. Thereafter, on 19 December 1988, the
Connecticut Superior Court entered an order (the Connecticut Order)
which addressed, inter alia, the parties' responsibilities
concerning payment of (1) future college expenses for the then-
minor children, and (2) the children's present and future medical
expenses. Regarding future college expenses, the Connecticut Order
provided as follows:
And that, to the extent that they are reasonably
financially able, the parties shall be solely responsible
for the education of the parties' minor children and
shall pay any and all expenses incurred by the children
during their attendance at a junior college, a four (4)
year college, or their respective equivalents.
And that, in the event that the parties are in
dispute as to each party's ability to pay for the
children's college education, the matter shall be
submitted to and determined by the [Connecticut Superior
Court]. In making its determination, the Court shall
consider the assets, liabilities, and income of both the
Plaintiff and the Defendant, and the contributions being
made by the parties toward the children's support.
. . . .
And that, the parties['] obligation with respect to
[payment of the children's college expenses] shall
continue with respect to the children despite the
children's attaining majority.
. . . .
With respect to the children's medical expenses, the
Connecticut Order provided:
And that, [defendant] represents that his employer
provides him with a group hospital and medical plan and
that the children are presently covered by such a plan.
[Defendant] shall, at his expense and at no cost to
[plaintiff], maintain such hospital and medical plan, or
the equivalent thereof, with respect to the children, so
long as he is obligated to support such children, as
provided in this decree.
And that, in addition to the foregoing obligation of
[defendant], the [defendant] shall pay, for the benefit
of the children, all unreimbursed reasonable medical,
optical, surgical, hospital, psychiatric, psychological,
and nursing expenses, the cost of prescriptive drugs[] .
. . so long as he is obligated to support the children .
. . as provided in this decree; provided, however, that
no psychiatric, psychological, orthodontia expense, or
elective surgery or treatment shall be incurred without
the prior consent of [defendant], which consent shall not
be unreasonably withheld.
. . . .
And that, should the children need any elective
surgery, psychiatric or psychological care, [plaintiff]
shall notify [defendant] of such need, and [defendant]
shall have the right to select a qualified professional
in the same field as the professionals selected by
[plaintiff] to examine the children and determine whether
or not such treatment is reasonably necessary. If it is
determined that it is reasonably necessary, then the
[defendant] shall provide and pay for the reasonable cost
of the same. If the [plaintiff's] professional and the
one selected by [defendant] shall not agree that the same
is reasonably necessary, or as to the reasonable cost or
expense thereof, this issue shall be submitted to the
[Connecticut Superior Court] for a determination.
. . . .
And that, all of [defendant's] obligations hereunder
for the benefit of the minor children shall terminate
when [defendant] is no longer obligated to support or
educate the children under the orders of this decree or
[defendant's] death, whichever is earlier.
. . . .
Subsequent to the parties' divorce and entry of the
Connecticut Order, plaintiff and the two children moved to North
Carolina in 1989. Plaintiff remarried in 1995. Plaintiff
testified that Greg entered the University of North Carolina at
Wilmington in 1996 and was still enrolled at the time of trial, and
Pierre attended Cape Fear Community College from 1997 through 2000.
Plaintiff testified that in 1997 a dispute arose between
plaintiff and defendant concerning their respective obligations to
pay expenses incurred by Greg and Pierre while the children were in
college. Plaintiff commenced the present litigation in October
1998 by filing a complaint alleging that, pursuant to the
Connecticut Order, (1) defendant was liable for a greater share of
the children's college-related expenses than defendant had
previously paid; and (2) defendant was obligated to reimburse
plaintiff for certain medical expenses plaintiff paid, including
expenses incurred by Pierre for psychological and psychiatric
treatment. The parties have stipulated that plaintiff properly
obtained service on defendant, a German citizen who in 1998 resided
in Sofia, Bulgaria, and that the Superior Court for the State of
North Carolina, County of Union, had jurisdiction over the parties
and the subject matter herein. On 9 December 1998, plaintiff
obtained an entry of default against defendant. On 18 January
2000, defendant's motion to set aside the entry of default was
denied, and the matter was set for trial to determine the amount of
plaintiff's damages.
Following a bench trial at which both parties presented
evidence, the trial court entered a judgment on 20 March 2002awarding plaintiff damages in the amount of $76,758.48 plus
interest. In determining the total judgment amount, the trial
court made the following pertinent findings of fact:
26. This Court has been called upon to determine the
ability of the plaintiff and the defendant to pay the
children's expenses while they were obtaining their
college education. The [Connecticut Order] entered into
by the parties in 1988 requires the Court to consider the
assets, liabilities, and incomes of both the plaintiff
and the defendant, and the contributions being made by
them towards their children's support in determining each
party's ability to pay the children's expenses. In
making this determination, the Court has considered the
plaintiff's estate and indebtedness, referred to above,
and that the plaintiff should have earned the sum of
$30,664.50 per year during the time that the children
were in college. The Court has further considered the
estate of the defendant, and the fact that the defendant
has become debt free while his children were in college,
and has also considered the defendant's income during the
time that the children were in college. The Court also
considered all of the children's expenses that either
party had paid under the [Connecticut Order] during the
time that the children were in college. The Court also
considered that of the parties' combined income and
income potential, the defendant earned approximately 69%
of that amount while the children were in college.
27. The Court finds, in its discretion, that the
defendant should have paid $132,118.15 of the children's
expenses (not including medical and psychological
expenses), but paid $66,710.90. Therefore, the defendant
underpaid the sum of $65,407.25, which the plaintiff has
paid.
28. The Court further finds that the defendant was
solely responsible under the [Connecticut Order] for
paying the children's medical expenses while they were
enrolled in college, and that the defendant should have
paid for Pierre's psychological expenses. Plaintiff has
paid the sum of $11,351.23 of the children's medical and
psychological expenses, which was the defendant's
obligation.
28.[sic] Based on the above, the Court finds that the
defendant owes plaintiff the sum of $76,758.48, which the
defendant should have paid, but the plaintiff paid for
the children's expenses.
. . . .
From the judgment entered 20 March 2002, defendant now appeals.
[1] By his first assignment of error, defendant argues the
trial court abused its discretion by refusing to admit into
evidence the following exhibits: number 31, a 1998 net worth
statement listing the total assets of plaintiff and her husband;
and numbers 38, 39, and 40, the federal income tax returns filed by
plaintiff and her husband in 1997, 1998, and 1999, respectively.
Defendant contends this evidence showing the income and estate of
plaintiff's husband is relevant because the trial court, in
determining plaintiff's appropriate share of the children's college
and medical expenses, should have considered plaintiff's access to
these assets. We disagree.
At the outset, we note that the parties' respective
obligations to pay their children's college and medical expenses
are established by the Connecticut Order, which we have examined
and find to be in the nature of a consent order for post-majority
support. Although entered in Connecticut, the parties have
stipulated that the North Carolina trial court properly exercised
its jurisdiction by interpreting the Connecticut Order in order to
determine the amount of plaintiff's damages. The appellate courts
of both states have held that a consent order establishing a
parent's obligation to support his or her children past the age of
majority is valid and must be enforced according to contract
principles, and that the courts may not modify the obligation set
forth therein. See Harding v. Harding, 46 N.C. App. 62, 64, 264
S.E.2d 131, 132 (1980); see also Miner v. Miner, 48 Conn. App. 409,
417-18, 709 A.2d 605, 609-10 (1998). “[I]f the plain language ofa contract is clear, the intention of the parties is inferred from
the words of the contract.” Bueltel v. Lumber Mut. Ins. Co., 134
N.C. App. 626, 631, 518 S.E.2d 205, 209 (1999), disc. review
denied, 351 N.C. 186, 541 S.E.2d 709 (1999). “It is
well-established law that, when a contract is plain and unambiguous
on its face, it will be interpreted by the courts as a matter of
law,” First Citizens Bank & Tr. Co. v. 4325 Park Rd. Assocs., 133
N.C. App. 153, 156, 515 S.E.2d 51, 54 (1999), disc. review denied,
350 N.C. 829, 539 S.E.2d 284 (1999), and “the court's only duty is
to determine the legal effect of the language used and to enforce
the agreement as written,” Atlantic and East Carolina Ry. Co. v.
Southern Outdoor Adver., 129 N.C. App. 612, 617, 501 S.E.2d 87, 90
(1998) (citations omitted).
The Connecticut Order provides that “to the extent that they
are reasonably financially able, the parties shall be solely
responsible for the education of the parties' minor children and
shall pay any and all expenses incurred by the children” while they
are enrolled in college. The Connecticut Order further states that
if the parties cannot agree on their respective support
obligations, the court “shall consider the assets, liabilities, and
income of both the Plaintiff and the Defendant, and the
contributions being made by the parties toward the children's
support” in making this determination. We conclude that by its
plain and unambiguous language, the Connecticut Order (1) obligates
only the parties to pay for their children's expenses, and (2)
mandates that only the parties' income, assets, and liabilities be
considered in resolving the present dispute. Because plaintiff'shusband is not a party to this action, the trial court properly
excluded as irrelevant the challenged evidence of plaintiff's
husband's income and assets. See N.C. Gen. Stat. § 8C-1, Rules 401
and 402 (2001). The record indicates substantial evidence of
plaintiff's separate income and assets during the relevant time
period was tendered to, and properly considered by, the trial
court. This assignment of error is without merit.
[2] Defendant next excepts to the trial court's finding that
Greg was enrolled in college at the time of the trial below,
arguing that this finding was not supported by the evidence.
However, the transcript reveals the following testimony by
plaintiff:
Q: [Defendant] testified a few minutes ago _ if I
understood his testimony to be that Greg had not signed
up for classes by the deadline. Do you know anything
about that? Is Greg enrolled in school now?
A: Yes. He is in school.
Q: In classes?
A: Yeah.
. . . .
In a bench trial, the trial court's findings of fact are conclusive
on appeal if there is competent evidence to support them, even
though the evidence could be viewed as supporting a different
finding. Stephenson v. Bartlett, 357 N.C. 301, 309, 582 S.E.2d
247, 252 (2003). Defendant's second assignment of error is
overruled.
[3] By his third assignment of error, defendant contends the
trial court abused its discretion by ordering him to reimburse
plaintiff the full $11,351.23 which the trial court found plaintiffexpended for the children's medical, psychological, and psychiatric
expenses. Defendant argues he should not be assessed the total
cost of these expenses because in some instances plaintiff neither
made sure the children used the insurance cards defendant provided
to them when obtaining treatment, nor sent copies of the children's
medical bills to defendant for processing by his insurance company.
We find no merit in this assignment of error.
The Connecticut Order required defendant to maintain the
children on his health insurance plan while they were in college.
By its clear and unambiguous language, the Connecticut Order also
required plaintiff to pay “all unreimbursed reasonable medical, .
. . psychiatric, [and] psychological[] . . . expenses” for the
children, provided that “no psychiatric, psychological[] . . .
treatment shall be incurred” without defendant's prior consent,
“which consent shall not be unreasonably withheld.” The
Connecticut Order also provided that, should either child need
psychological or psychiatric care, plaintiff must notify defendant,
who is then entitled to seek a second opinion for determination of
whether such treatment is reasonably necessary. Finally, the
Connecticut Order prohibited either party from preventing or
interfering with the processing of any insurance reimbursement
claim.
The bulk of the medical expenses for which defendant was
ordered to reimburse plaintiff were incurred for Pierre's
psychological and psychiatric treatment. Regarding these expenses,
the trial court found as follows:
16. [Pierre] has been arrested and convicted of
possession of marijuana on at least three occasions[]. .. . In October of 1999, he entered a treatment center.
He has also been treated by a psychologist for his
problems, who referred him to a psychiatrist. The
plaintiff discussed with the defendant Pierre's need for
treatment, and the defendant disagreed that he needed
treatment. In July, 1999, the Court ordered Pierre to
obtain a substance abuse assessment, and he has been
ordered to obtain treatment as a condition of probation.
. . . [Defendant] has disagreed with Pierre's
psychological treatment, but [defendant] has never sought
a second opinion as to whether or not Pierre needed
treatment.
17. The Court finds that Pierre's psychological
treatment was reasonably necessary, and that the expenses
incurred by the plaintiff for Pierre's treatment and
counseling was reasonably necessary, and that defendant
was unreasonable in withholding his consent to
psychological treatment. The plaintiff has paid $8590
for psychological treatment services for Pierre before he
withdrew from college. The plaintiff has also paid
$2761.23 for both children's medical bills, while they
have been attending college.
. . . .
Because defendant has not challenged findings of fact numbers
16 and 17, the findings contained therein are deemed to be
supported by competent evidence and are conclusive on appeal.
Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292
S.E.2d 159, 161 (1982). We are thus bound by the trial court's
findings as to the amounts paid by plaintiff, the reasonableness of
Pierre's psychological and psychiatric treatment, and defendant's
failure to seek a second opinion as to whether this treatment for
Pierre was appropriate. The record evidence indicates defendant
simply refused to pay Pierre's psychological and psychiatric
expenses because defendant disputed the appropriateness of this
treatment, in violation of the Connecticut Order's plain language.
Likewise, by refusing to reimburse plaintiff for both
children's other medical expenses which were not paid bydefendant's insurance carrier, defendant violated the Connecticut
Order's clear and unambiguous terms. The trial court found that
“[o]n many occasions, the plaintiff has not known the defendant's
location in order to send medical bills to him. For this reason,
many of the children's medical bills were never submitted to the
medical insurance carrier for payment.” This finding was supported
by record evidence tending to show that during the relevant time
period, defendant was self-employed as a consultant and that he
temporarily lived and worked in various European and Asian
countries.
Where the trial court conducts a bench trial and is the finder
of fact, the trial court's decision will not be upset on appeal
absent an abuse of discretion. Under this standard of review, we
defer to the trial court's discretion and will reverse its ruling
“only upon a showing that it was so arbitrary that it could not
have been the result of a reasoned decision.” White v. White, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Because we are unable
to conclude that the trial court abused its discretion by ordering
defendant to comply with the Connecticut Order and reimburse
plaintiff for the total amount of the disputed medical,
psychological, and psychiatric expenses, this assignment of error
is overruled.
[4] By his final assignment of error, defendant contends the
trial court abused its discretion by the methodology it employed to
determine the parties' respective abilities to pay the children's
college-related expenses. We disagree. With respect to the children's expenses while attending
college, the trial court concluded that “the plaintiff has paid
$65,407.25 . . . that the defendant should have paid under the
[Connecticut Order], and the defendant owes plaintiff that sum.”
In support of its conclusion, the trial court made, inter alia, the
following findings:
26. This Court has been called upon to determine the
ability of the plaintiff and the defendant to pay the
children's expenses while they were obtaining their
college education. The [Connecticut Order] . . .
requires the Court to consider the assets, liabilities,
and incomes of both the plaintiff and the defendant, and
the contributions made by them towards their children's
support in determining each party's ability to pay the
children's expenses. In making this determination, the
Court has considered the plaintiff's estate and
indebtedness, . . . and that the plaintiff should have
earned the sum of $30,664.50 per year during the time
that the children were in college. The Court has further
considered the estate of the defendant, and the fact that
the defendant has become debt free while his children
were in college, and has also considered the defendant's
income during the time the children were in college. The
Court also considered all of the children's expenses that
either party had paid under the [Connecticut Order]
during the time that the children were in college. The
Court also considered that of the parties' combined
income and income potential, the defendant earned
approximately 69% of that amount while the children were
in college.
27. The Court finds, in its discretion, that the
defendant should have paid $132,118.15 of the children's
expenses (not including medical and psychological
expenses), but paid $66,710.90. Therefore, the defendant
underpaid the sum of $65,407.25, which the plaintiff has
paid.
. . . .
Our review of the record reveals that over the three days it
took to try this matter, the parties introduced numerous documents
detailing their respective incomes, assets, and liabilities during
the relevant time period. As discussed above, the trial courtproperly denied defendant's request to put on evidence regarding
the income and assets of plaintiff's husband. The trial court made
detailed findings as to each parties' average yearly income,
assets, and liabilities during the relevant time period, including
a finding that an average yearly income of $30,664.50 should be
imputed to plaintiff because she was voluntarily underemployed
while the children were in college. The trial court then combined
defendant's average yearly income with plaintiff's imputed income
and determined that defendant earned 69% of the parties' total
income while the children were in college.
The parties likewise introduced evidence of hundreds of
expenditures each claimed to have made on behalf of Greg and Pierre
while they were in college. In its detailed and comprehensive
findings, the trial court disallowed some of each parties' claimed
expenditures and found that plaintiff spent $124,764.68 for
expenses the children incurred while enrolled, while defendant paid
$66,710.90. The trial court then added these figures to obtain a
total sum for both parties' college expenditures of $191,475.58.
The trial court determined what portion of this amount defendant
should have paid by taking 69% of this amount, or $132,118.15, and
subtracting from it the amount it found defendant actually paid, or
$66,710.90, for a total amount owed to plaintiff of $65,407.25.
The trial court's award of damages at a bench trial is a
matter within its sound discretion, and will not be disturbed on
appeal absent an abuse of discretion. Mullins v. Friend, 116 N.C.
App. 676, 684, 449 S.E.2d 227, 232 (1994). “[I]n order to reverse
the trial court's decision for abuse of discretion, we must findthat the decision was unsupported by reason and could not have been
the result of a competent inquiry.” Hamby v. Hamby, 143 N.C. App.
635, 638, 547 S.E.2d 110, 112, disc. review denied, 354 N.C. 69,
553 S.E.2d 39 (2001). Because we cannot conclude that the trial
court's methodology in determining the parties' respective
abilities to pay the children's college-related expenses “was
unsupported by reason and could not have been the result of a
competent inquiry,” this assignment of error is without merit.
Affirmed.
Chief Judge EAGLES and Judge HUNTER concur.
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