1. Child Support, Custody, and Visitation_support_Guidelines_current version
The trial court correctly applied the version of the Child Support Guidelines in effect at
the time of the hearing and the announcement of the decision in open court, even though a new
version had come into effect by the time the written order was entered.
2. Child Support, Custody, and Visitation_support_earning capacity_no findings of
suppressed income
An order determining child support to be paid by a student was remanded where the court
used earning capacity rather than actual income without findings of bad faith.
Attorney General Roy Cooper, by Assistant Attorney General
Brenda Eaddy, for plaintiffs-appellees.
Jeffrey L. Miller for defendant-appellant.
McGEE, Judge.
Defendant appeals from an order awarding Mary B. Godwin
(plaintiff) $95.00 per month in child support, in addition to
providing medical insurance should it become available at a
reasonable cost through defendant's employment.
Defendant is the biological father of a minor child, Peyton E.
Godwin (Peyton), born 3 July 2001. Plaintiff is the biological
mother of Peyton and has custody of the child. At the time of
Peyton's birth, defendant and plaintiff were seventeen-year-old
minors in their junior year of high school. Prior to defendant'sgraduation from high school in June 2002, defendant was accepted
for enrollment as a student at East Carolina University.
In 2001, defendant earned an average monthly gross income of
$478.01, derived from his after-school part-time and summer
seasonal employment at Outback Steakhouse in New Bern, North
Carolina. In 2002, while still in high school, defendant continued
to work after school at the Outback Steakhouse. After his high
school graduation in June 2002, and prior to his college enrollment
in August 2002, defendant worked full-time as a busboy at Clawson's
restaurant (Clawson's) in Beaufort, North Carolina. At Clawson's,
he earned approximately $5.25 per hour. At the time of the trial
court's hearing on the matter of child support in September 2002,
defendant was enrolled as a full-time student at East Carolina
University and was seeking part-time employment.
After hearing evidence regarding Peyton's needs and testimony
on defendant's financial status, the trial court utilized an
earning capacity standard to calculate defendant's monthly child
support obligation, rather than relying on defendant's actual
income. The trial court found that defendant was an able-bodied
person capable of earning income at the minimum wage of $5.15 per
hour, on a full-time basis. The trial court computed his imputed
gross income to be $892.67 per month. Based upon the 1998 North
Carolina Child Support Guidelines, the trial court announced its
order in open court in September 2002, directing defendant to pay
child support in the amount of $95.00 per month. The written order
was entered on 16 December 2002. Defendant appeals.
[1] Defendant first assigns error to the trial court's use ofthe 1998 version of the North Carolina Child Support Guidelines
(Guidelines) instead of the 2002 version. Defendant emphasizes
that while the trial court announced its order in open court on 3
September 2002, the order was not entered until 16 December 2002,
after the effective date of the 2002 version of the Guidelines.
Although defendant did not include this issue in his
assignments of error and thus has failed to preserve the issue for
appellate review, this Court elects in the interest of judicial
economy to consider the merits of defendant's argument. N.C.R.
App. P. 2.
N.C. Gen. Stat. § 1A-1, Rule 58 (2003) provides that "a
judgment is entered when it is reduced to writing, signed by the
judge, and filed with the clerk of court." This Court has held
that Rule 58 applies to orders as well as to judgments. West v.
Marko, 130 N.C. App. 751, 756, 504 S.E.2d 571, 574 (1998). As
with a judgment, "an order rendered in open court is not
enforceable until it is 'entered.'" Id. at 756, 504 S.E.2d at 574.
Thus, in the case before us, the trial court's child support order
was not enforceable between the parties until it was entered on 16
December 2002.
N.C. Gen. Stat. § 50-13.4(c) (2003) mandates that the trial
court in an action for support of a minor child is to "determine
the amount of child support payments by applying the presumptive
guidelines[.]" None of the exceptions to this legislative
directive are applicable in the case before this Court. The
Guidelines are reviewed every four years and modified as necessary.
At the time of the trial court's hearing and subsequentpronouncement in open court, the 1998 version of the Guidelines was
in effect and the trial court was under a statutory obligation to
follow the Guidelines current at that time. The 2002 version of
the Guidelines became effective as of 1 October 2002.
The introductory portion of the 2002 version of the Guidelines
does not elaborate as to whether it is applicable to orders not yet
entered as of 1 October 2002. Defendant stresses that the
introduction to the 2002 version of the Guidelines proscribes that
"[t]he guidelines must be used when the court enters a temporary or
permanent child support order in a non-contested case or contested
hearing." Defendant thus argues that since the order was not
entered until after 1 October 2002, the 2002 version is
controlling. We construe this directive to be only a restatement
of the presumptive nature of the Guidelines as mandated by N.C.
Gen. Stat. § 50-13.4(c).
We recognize that the trial court was not required to announce
its order in open court. However, by doing so, the trial court was
required by statute to apply the presumptive Guidelines in effect
on 3 September 2002. At that time, the revised 2002 version of the
Guidelines was not yet applicable. In the absence of guidance from
the General Assembly as to what cases were impacted by the 2002
version's stated effective date of 1 October 2002, we conclude that
the trial court acted appropriately in applying the 1998 version of
the Guidelines at the time the trial court announced its decision
and subsequently entered its order. We find defendant's argument
is without merit.
[2] Defendant next contends the trial court erred in using anearning capacity standard, instead of defendant's actual earnings,
for the purpose of determining defendant's child support payments.
Defendant argues the trial court, in imputing income to defendant,
did not make the requisite findings or conclusions indicating any
deliberate or bad faith conduct by defendant to suppress his income
or otherwise avoid his child support obligation.
Upon appellate review, a trial court's determination of the
proper child support payment will not be disturbed absent a clear
abuse of discretion. Bowers v. Bowers, 141 N.C. App. 729, 731, 541
S.E.2d 508, 509 (2001). To support such a reversal, an appellant
must show that the trial court's actions were manifestly
unsupported by reason. Id.
Child support payments are ordinarily determined based on a
party's actual income at the time the award is made. Sharpe v.
Nobles, 127 N.C. App. 705, 708, 493 S.E.2d 288, 290 (1997). Our
appellate Courts have repeatedly held that the earning capacity
standard can only be used in calculating child support payments
where there are "findings, based on competent evidence, to support
a conclusion that the supporting . . . parent is deliberately
suppressing his or her income to avoid family responsibilities."
Bowers, 141 N.C. App. at 732, 541 S.E.2d at 510; see Kowalick v.
Kowalick, 129 N.C. App. 781, 787-88, 501 S.E.2d 671, 676 (1998);
Ellis v. Ellis, 126 N.C. App. 362, 364-65, 485 S.E.2d 82, 83
(1997); Whitley v. Whitley, 46 N.C. App. 810, 812, 266 S.E.2d 23,
27 (1980). Standing alone, evidence that a defendant voluntarily
depressed his income is insufficient to support the application of
the earning capacity standard. Cook v. Cook, 159 N.C. App. 657,662, 583 S.E.2d 696, 699 (2003). In this case, the trial court's
order lacks any finding or conclusion that defendant depressed his
income in bad faith. Therefore, we reverse and remand for an
appropriate determination of defendant's child support obligation
in accordance with this opinion.
Affirmed in part, reversed and remanded in part.
Judges HUNTER and GEER concur.
*** Converted from WordPerfect ***