An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
ure.
NO. COA02-1231
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2003
RODNEY ROW
Plaintiff
v
.
Cumberland County
No. 00 CVD 2694
LEIGH ROW
Defendant.
Appeal by plaintiff from orders entered 13 November 2001 and
filed 28 February 2002 by Judge L.W. Payne and entered 3 April 2002
by Judge A. Elizabeth Keever in Cumberland County District Court.
Heard in the Court of Appeals 5 June 2003.
Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by David F.
Mills and George B. Mast, for plaintiff-appellant.
Blackwell & Edwards, P.A., by Timothy D. Edwards, for
defendant-appellee.
TYSON, Judge.
Rodney Row (plaintiff) appeals from an order denying
plaintiff's request for modification of custody, modifying
defendant's child support obligation, and denying plaintiff's
request for deviation from the child support guidelines. We affirm
in part, vacate in part, and remand.
I. Background
Plaintiff and Leigh Row (now Deese) (defendant) were married
on 10 April 1991. Kaytlyn was born of the marriage on 24 April
1991 and Gabrielle was born on 13 March 1995. Plaintiff is a
career United States Army officer serving since 1984. Defendant isemployed as a pharmaceutical sales representative.
The parties separated on or about 5 September 1999. On 5
April 2000, plaintiff filed suit seeking alimony, temporary and
permanent custody of the children, child support, and equitable
distribution. On 30 October 2000, pursuant to stipulations of the
parties, the trial court found both plaintiff and defendant fit and
proper persons to have joint custody of the minor children and
found the best interest of the children were accomplished by an
award of primary physical custody to defendant with secondary
custody to plaintiff. Plaintiff was provided liberal visitation
rights. Plaintiff was required to pay $700.00 per month in child
support until the death of plaintiff, the death of the children,
the children's completion of high school, or the reconciliation of
plaintiff and defendant.
In January 2001, defendant began dating Renny Deese and
married him in the spring of 2001. In May 2001, plaintiff was
transferred from Fort Bragg to Fort Schafter, Hawaii. Because of
the transfer, the joint custody agreement was no longer workable.
Plaintiff was unable to visit with his children from 10 July 2001
until the beginning of November 2001.
The trial court held a hearing on 13 November 2001 to consider
motions filed by both plaintiff and defendant for modification of
custody and child support and plaintiff's motion to depart from the
North Carolina Child Support Guidelines (Guidelines). At the
hearing, the trial court found that difficulties of compliance with
the prior visitation order have not been excessive under thecircumstances; that it appears that both parties have generally
acted in good faith in implementing the custody and visitation
terms of the previous order. The trial court found that the
children's primary custody should remain with defendant and
secondary custody with plaintiff.
The trial court (1) denied plaintiff's request to deviate from
the Guidelines, (2) made findings regarding the incomes of both
plaintiff and defendant, (3) increased plaintiff's child support
obligation, and (4) found the Plaintiff has the means to pay said
sum or the ability to take reasonable measures in order to pay the
said amount. Plaintiff appeals.
II. Issues
Plaintiff contends the trial court erred in (1) denying
plaintiff's request to modify custody, (2) denying plaintiff's
request for deviation from the presumptive child support
guidelines, (3) computing the child support obligations under the
guidelines, and (4) increasing plaintiff's child support
obligation.
III. Custody
Plaintiff contends the trial court erred in denying his
request to modify custody. We disagree.
A court may modify child custody as between natural parents
when the party seeking modification shows a substantial change in
circumstances affecting the welfare of a child, and that a change
in custody is in the best interest of the child. N.C. Gen. Stat.
§ 50-13.7(a) (2001); Evans v. Evans, 138 N.C. App. 135, 530 S.E.2d576 (2000). '[T]he modification of a custody decree must be
supported by findings of fact based on competent evidence that
there has been a substantial change of circumstances affecting the
welfare of the child, and the party moving for such modification
assumes the burden of showing such change of circumstances.'
Hassell v. Means, 42 N.C. App. 524, 530-31, 257 S.E.2d 123, 127
(1979) (quoting Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d
678, 681 (1974)).
The trial court found two changed circumstances: plaintiff's
transfer to Hawaii; and, defendant's remarriage. The trial court
then ruled that primary custody remaining with defendant and
secondary custody with plaintiff was in the best interest of the
children.
Plaintiff contends the trial court erred in its best interest
analysis based on defendant's alleged contempt of the previous
order. The trial court found that given the complexities of that
order and complications arising from plaintiff's transfer to
Hawaii, the problems [were not] excessive and that the parties
have generally acted in good faith in implementing the custody and
visitation terms of the previous order. This finding is supported
by competent evidence.
Plaintiff also argues the trial court failed to consider the
children's school performance. The trial court found, while
Kaytlyn had suffered academic problems, she appears to be making
improvements during the current year. Evidence was presented that
showed Kaytlyn's grade point average rising almost a point and ahalf, and that defendant was in constant contact with Kaytlyn's
teachers to work on Kaytlyn's performance. The trial court's
findings are supported by competent evidence in the record.
Plaintiff failed to show that the trial court abused its
discretion in finding the best interest of the children requires
the continuation of primary physical custody with defendant and
secondary custody with plaintiff.
IV. Child Support
Plaintiff contends the trial court erred in increasing
plaintiff's child support obligations and in failing to deviate
from the guidelines.
Child support orders entered by a trial court are accorded
great 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.
A. Request for Deviation
N.C. Gen. Stat. § 50-13.4(c), which provides for the deviation
from the Guidelines, states:
upon request of any party, the Court shall
hear evidence, and from the evidence, find the
facts relating to the reasonable needs of the
child for support and the relative ability of
each parent to provide support. If, after
considering the evidence, the Court 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 eachparent to provide support or would be
otherwise unjust or inappropriate the Court
may vary from the guidelines. If the court
orders an amount other than the amount
determined by application of the presumptive
guidelines, the court shall make findings of
fact as to the criteria that justify varying
from the guidelines and the basis for the
amount ordered.
The burden is on the moving party to show the Guidelines do not
meet or exceed the reasonable needs of the children or are
otherwise unjust or inappropriate. '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.' Leary v. Leary, 152 N.C. App. 438, 442, 567 S.E.2d
834, 837 (2002) (quoting 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, plaintiff failed to present any evidence of the
reasonable needs of the children or how the Guidelines would not
meet or would exceed those needs. A trial court's findings must be
based on evidence presented. If there is no evidence presented,
then the trial court cannot make findings. The trial court did not
err in finding insufficient evidence was presented at the hearing
to deviate from the guidelines.
B. Increase in Child Support
An order of a court of this State for support of a minor
child may be modified or vacated at any time, upon motion in the
cause and a showing of changed circumstances by either party or
anyone interested. N.C. Gen. Stat. § 50-13.7(a). Modification ofa child support order involves a two step process. The court must
first determine a substantial change of circumstances has taken
place; only then does it proceed to apply the Guidelines to
calculate the applicable amount of support. McGee v. McGee, 118
N.C. App. 19, 26-27, 453 S.E.2d 531, 536 (1995). Change of
circumstances means a substantial change in circumstances
affecting the welfare of the child. Pittman v. Pittman, 114 N.C.
App. 808, 810, 443 S.E.2d 96, 97 (1994).
In the present case, the trial court's only finding regarding
change of circumstances is that there have been at least two
substantial change of circumstances in that the Plaintiff has
relocated to the State of Hawaii and the Defendant has remarried.
Based upon the changes, the trial court changed the parties
visitation schedule.
The trial court imputed an income of $70,000 to defendant and
found plaintiff's income to be $7,384 per month. Although the
trial court found additional expenses of child care, private
school, and health insurance, the trial court only stated
additional expenses of $506 per month for the private school. The
record does not contain a Worksheet A where the trial court
determined plaintiff's child support obligations. A proposed
worksheet A was prepared and presented as an exhibit to plaintiff's
Rule 54 motion.
Based on the incomes found by the trial court, the additional
expenses actually found by the trial court, and the lack of a
Worksheet, we are unable to determine whether the trial courtcorrectly followed the Guidelines in determining plaintiff's
support obligations. We vacate the support order and remand to the
trial court to redetermine the support obligations.
V. Conclusion
The trial court did not abuse its discretion in finding the
best interest of the children require the continuation of primary
physical custody with defendant and secondary custody with
plaintiff. That portion of the trial court order is affirmed.
The trial court failed to make sufficient findings of fact and
conclusions of law for this Court to determine whether the
Guidelines were followed. We vacate the trial court's order of
child support and remand to the trial court for additional findings
of fact and conclusions of law.
Affirmed in part, vacated in part and remanded.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).
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