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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
SEAN CHRISTIAN SPICER, Plaintiff, v. KRISTEN LEIPPE SPICER,
Filed: 1 February 2005
1. Child Support, Custody, and Visitation_child support--free housing for disabled
parent_included as income
The trial court did not err in a child support action by including in the disabled father's
income the value of the rent-free housing supplied by his parents. Housing is a form of financial
support that may be considered in determining in the proper amount of child support.
2. Child Support, Custody, and Visitation_support_trust for disabled
The trial court did not err in a child support action by finding that a trust established for a
disabled father with proceeds from a settlement after an auto accident was nonrecurring income.
In light of the breadth of the definition of income in the Guidelines, the trial court could include
the trust as nonrecurring income.
3. Child Support, Custody, and Visitation_child support_principal of disabled father's
The trial court did not err by supplementing the funds available for child support by
invading the principal of the disabled father's trust.
4. Child Support, Custody, and Visitation--child support--monthly and lump sum
The trial court did not err in ordering the father to make both monthly payments and a
lump sum payment to be placed in trust for the support of his minor child.
5. Child Support, Custody, and Visitation_child support_child's needs_findings
A child support order which deviated from the Guidelines was remanded for further
findings about the child's specific needs. In the absence of sufficient findings about the child's
reasonable needs, it could not be determined whether the lump sum awarded would meet or
exceed the child's needs.
6. Child Support, Custody, and Visitation_child support_disabled father_health and
The trial court gave sufficient consideration in a child support action to the disabledfather's present condition and estate, including his health and other related circumstances. No
authority was cited requiring findings about possible future medical expenses.
7. Child Support, Custody, and Visitation_child support_use of formula
On remand of a child support order, the trial court may again use a formula so long as it
is based on logic and reason and reaches a result consistent with the child's reasonable needs in
light of the parties' accustomed standard of living and the father's ability to pay.
8. Child Support, Custody, and Visitation_child support_attorney fees_determination
The trial court did not abuse its discretion in calculating attorney fees in a child support
action. The case was for both support and custody since custody had not been resolved when the
support hearing began, and the sole required findings were that the party seeking fees acted in
good faith and lacked the means to defray the suit. The trial court here made the necessary
findings, and the number of hours for which counsel was compensated were calculated based on
a careful consideration of counsel's affidavit and an extensive discussion with counsel.
Appeal by plaintiff and cross-appeal by defendant from order
entered 10 June 2003 by Judge Rebecca T. Tin in Mecklenburg County
District Court. Heard in the Court of Appeals 19 May 2004.
Andrew D. Taylor, Jr. & Assoc., by Andrew D. Taylor, Jr.; and
Michelle D. Reingold, for plaintiff-appellant.
Ellis M. Bragg, Jr., for defendant-appellee.
In his appeal from a child support order, plaintiff Sean
Christian Spicer contends primarily that the trial court erred in
concluding that a trust fund established for his support following
a disabling automobile accident was non-recurring income within the
meaning of the North Carolina Child Support Guidelines, 2005 Ann.
R. N.C. 47 (Rev. Oct. 2002) ("the Guidelines") and ordering him topay $74,722.80 to establish a trust fund for the support of his
son. We conclude that the trial court did not err in determining
that the settlement was non-recurring income and that it could be
used to establish a child support trust. Because, however,
trial court failed to make sufficient findings of fact regarding
the reasonable needs of the child, w
e must remand for further
The Spicers were married on 20 June 1998 and their son was
born 1 January 1999. At that time, Mr. Spicer, who was the sole
financial provider for the family, worked for Time Warner Cable
Company, earning approximately $25,000.00 annually. On 1 April
1999, Mr. Spicer was severely injured when a truck swerved into his
lane and collided head-on with his vehicle. As a result of his
injuries, Mr. Spicer was in a coma for several weeks, was
hospitalized for approximately four months, and underwent
rehabilitation for approximately one year. Mr. Spicer's cognitive
abilities, including his short-term memory, have been severely
impaired as a result of his traumatic head injury.
Mr. Spicer ultimately entered into a lump-sum settlement with
the company that owned the truck. Mr. Spicer's father, a financial
planner, placed the settlement proceeds in an inter vivos family
trust, naming Sean Spicer as grantor and himself as trustee. The
trust instrument provides that Sean Spicer, as grantor, has theright to "alter, amend, or revoke" the trust agreement "in whole or
in part at such time as [he] may see fit by written notice
delivered to the Trustee." Although the instrument provides that
the trustee may "pay to or for the benefit of [Sean Spicer] . . .
such amounts of the income and principal of this trust as [Sean
Spicer] may in writing request," it also includes a spendthrift
clause. After payments to resolve a medical insurance subrogation
claim and for litigation expenses, a balance of $622,690.22
remained in the trust.
The Spicers separated on 27 March 2000, approximately a year
after the accident. A final divorce decree was entered 1 June
2001. On 10 July 2001, Mr. Spicer filed a complaint seeking joint
custody of his son. On 31 August 2001, Ms. Spicer filed an answer
and counterclaim seeking temporary and permanent custody of the
A consent order for permanent custody and visitation was
entered on 28 March 2003, granting Ms. Spicer permanent custody of
the child and granting Mr. Spicer permanent supervised visitation.
On 10 June 2003, the trial court entered an order for permanent
child support, in which the court (1) applied the Guidelines to Mr.
Spicer's recurring income resulting in a child support obligation
of $460.02 per month, (2) treated Mr. Spicer's entire trust
principal as non-recurring income under the Guidelines, (3)
determined that it would be unjust to Mr. Spicer and inappropriateto use the methods specified in the Guidelines to calculate the
amount of non-recurring income to be applied toward child support,
(4) ordered, based on application of a formula, a lump sum payment
of $74,722.80 from the trust principal to be placed in a second
trust for the child, and (5) awarded Ms. Spicer $5,583.75 in
attorneys' fees and costs. Mr. Spicer has appealed from this
Under N.C. Gen. Stat. § 50-13.4(c) (2003), a court "shall
determine the amount of child support payments by applying the
presumptive guidelines established pursuant to subsection (c1) of
this section." Child support set in accordance with the Guidelines
"is conclusively presumed to be in such amount as to meet the
reasonable needs of the child and commensurate with the relative
abilities of each parent to pay support." Buncombe County ex rel.
Blair v. Jackson, 138 N.C. App. 284, 287, 531 S.E.2d 240, 243
(2000). The trial court may, however, deviate from the Guidelines
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 each parent to provide support or would be
otherwise unjust or inappropriate . . . .
N.C. Gen. Stat. § 50-13.4(c). In this case, the trial court
applied the Guidelines to Mr. Spicer's recurring income, butdecided to deviate from the Guidelines with respect to Mr. Spicer's
In reviewing child support orders, our review is limited to a
determination whether the trial court abused its discretion. Leary
v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002).
Under this standard of review, the trial court's ruling will be
overturned only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision. Id. The
trial court must, however, make sufficient findings of fact and
conclusions of law to allow the reviewing court to determine
whether a judgment, and the legal conclusions that underlie it,
represent a correct application of the law. Id. at 441-42, 567
S.E.2d at 837.
I. APPLICATION OF THE GUIDELINES TO PLAINTIFF'S RECURRING INCOME
 In applying the Guidelines to Mr. Spicer's recurring
income, the trial court found that Mr. Spicer receives an average
monthly gross income of $98.90 from a part-time job, $851.00 from
social security disability, $442.00 in social security benefits for
his child (as a result of Mr. Spicer's disability), and $221.00
from Time Warner disability. In addition, the trial court found
that Mr. Spicer lives with his parents rent-free and that "the
benefit of a rent-free residence reduces the Plaintiff's personal
living expenses and that the sum of Three Hundred and 00/100
Dollars ($300.00) monthly should be attributed to the Plaintiff asincome for this benefit."
Mr. Spicer argues on appeal that this finding represents an
improper imputation of income under the Guidelines. In discussing
"income" to be used in calculating support, the Guidelines provide:
(3) Potential or Imputed Income. If
either parent is voluntarily unemployed or
underemployed to the extent that the parent
cannot provide a minimum level of support for
himself or herself and his or her children
when he or she is physically and mentally
capable of doing so, and the court finds that
the parent's voluntary unemployment or
underemployment is the result of a parent's
bad faith or deliberate suppression of income
to avoid or minimize his or her child support
obligation, child support may be calculated
based on the parent's potential, rather than
actual, income. Potential income may not be
imputed to a parent who is physically or
mentally incapacited or is caring for a child
who is under the age of three years and for
whom child support is being determined.
Guidelines, 2005 Ann. R. N.C. 49 (emphasis added). Mr. Spicer
contends that imputation of income is improper because he is
Based on our review of the record, we disagree with Mr.
Spicer's characterization of the trial court's finding. Instead of
imputing potential income to Mr. Spicer, the court was considering
his cost-free housing as a form of gross income valued at $300.00
per month. See Burnett v. Wheeler, 128 N.C. App. 174, 177, 493
S.E.2d 804, 806 (1997) ("Judge Foster did not 'impute' an income of
$77,000 to defendant. A careful review of the record reveals that the trial court found that defendant's total income, from all
available sources, equaled at least $77,000.")
The Guidelines include as "income" any "maintenance received
from persons other than the parties to the instant action."
Guidelines, 2005 Ann. R. N.C. 48. "Maintenance" is defined as
"[f]inancial support given by one person to another . . . ."
Black's Law Dictionary 973 (8th ed. 2004). As our appellate courts
have previously recognized, cost-free housing is a form of
financial support that may be considered in determining the proper
amount of child support to be paid. See Guilford County ex rel.
Easter v. Easter, 344 N.C. 166, 171, 473 S.E.2d 6, 9 (1996)
(voluntary support by maternal grandparents, including cost-free
housing, properly considered in determining child support); Gibson
v. Gibson, 24 N.C. App. 520, 522-23, 211 S.E.2d 522, 524 (1975)
(evidence that employer supplied father with automobile and rent-
free apartment that reduced his living expenses was evidence of
"additional income" from his job beyond his salary). See also 2
Suzanne Reynolds, Lee's North Carolina Family Law § 10.8 at 533
(5th ed. 1999) (included in income are "in-kind payments, such as
a company car, free housing or reimbursed meals, if they are
significant and reduce personal living expenses"). We therefore
hold that the trial court did not err in including the $300.00 per
month value of Mr. Spicer's housing as income.
II. THE TRIAL COURT'S TREATMENT OF MR. SPICER'S TRUST
Mr. Spicer next contends the trial court erred when it ordered
him to invade the principal of the settlement trust and make a
lump-sum payment that would in turn be used to establish a trust
for the child's support. He argues further that even if the trial
court properly considered his trust as income, it failed to make
sufficient findings of fact to support its deviation from the
Guidelines with respect to the trust.
A. Treatment of the Trust as Non-Recurring Income
 We first consider Mr. Spicer's contention that since the
trust was established to pay for outstanding debts due to the
accident and to compensate his pain and suffering, the trial court
erred in finding that the settlement trust was "non-recurring
income" within the meaning of the Guidelines. The Guidelines,
however, specifically include as income: "income from any source,
including but not limited to . . . trusts[.]" Guidelines, 2005
Ann. R. N.C. 48 (emphasis added). Accordingly, this Court held in
Swink v. Swink, 6 N.C. App. 161, 164, 169 S.E.2d 539, 541 (1969),
that a father's interest in a spendthrift trust "can be reached to
provide child support and alimony . . . ." Cf. Shaw v. Cameron,
125 N.C. App. 522, 528, 481 S.E.2d 365, 369 (1997) (mother was
entitled to discovery of the terms of father's trust because any
judgment setting child support would depend upon the amount of the
father's income and the nature of his estate, including the trust).
Mr. Spicer argues that we should construe the Guidelines'definition of "income" as encompassing only settlements providing
compensation for lost wages. In support of this argument, Mr.
Spicer relies solely upon Johnson v. Johnson, 317 N.C. 437, 346
S.E.2d 430 (1986), an equitable distribution case. In Johnson, our
Supreme Court held that, in determining whether the proceeds from
a personal injury settlement obtained during marriage should be
classified as marital or separate property,
the portion of an award representing
compensation for non-economic loss _ i.e.,
personal suffering and disability _ is the
separate property of the injured spouse; the
portion of an award representing compensation
for economic loss _ i.e., lost wages, loss of
earning capacity during the marriage, and
medical and hospital expenses paid out of
marital funds _ is marital property.
Id. at 448, 346 S.E.2d at 436. Nothing in Johnson suggests that
its analysis of separate and marital property for purposes of
distributing a marital estate should have any impact on the
calculation of child support.
The purpose of equitable distribution is so dissimilar from
that of child support that we cannot accept Mr. Spicer's invitation
to analogize the two. While the purpose of equitable distribution
is to require married persons to share their maritally-acquired
property with each other after the marriage has dissolved, id. at
450, 346 S.E.2d at 437, the purpose of our child support law is to
ensure that parents meet their legal obligation "'to secure support
commensurate with the needs of the child and [the parents'] ability. . . to meet the needs.'" Holt v. Holt, 29 N.C. App. 124, 126,
223 S.E.2d 542, 544 (1976) (quoting Crosby v. Crosby, 272 N.C. 235,
237, 158 S.E.2d 77, 79 (1967)). Thus, while our equitable
distribution laws are designed to protect the property interests of
divorcing spouses, child support laws are designed to protect the
welfare of children. See In re Foreclosure of Deed of Trust from
Cooper, 81 N.C. App. 27, 39, 344 S.E.2d 27, 35 (1986) (because of
the differing public policies involved, holding that contingent fee
contracts are permitted in equitable distribution cases even though
void in child support actions). Because of the differing policies,
it would be inappropriate to extend Johnson to child support
determinations. In light of the breadth of the definition of
"income" in the Guidelines, we hold that the trial court could
properly include Mr. Spicer's trust as non-recurring income.
Mr. Spicer urges that public policy demands that the
settlement not be regarded as income for purposes of a child
support calculation since taking money from this source potentially
could render him "a ward of the state unable to care for his, or
his son's, needs." As Mr. Spicer recognizes, however, this
situation presents competing policy considerations. A decision
regarding how to balance these interests in light of the statutory
framework falls uniquely within the purview of the General
Assembly. See Rhyne v. K-Mart Corp., 358 N.C. 160, 169, 594 S.E.2d
1, 8 (2004) ("The General Assembly is the 'policy-making agency'because it is a far more appropriate forum than the courts for
implementing policy-based changes to our laws."). The General
Assembly has chosen to give the district courts broad discretion to
devise an appropriate child support award in light of the
circumstances of all the parties. It is the responsibility of the
district court to weigh those circumstances and determine what is
just and appropriate; we may not dictate a result as a matter of
 Alternatively, Mr. Spicer argues that the trial court
should have left the trust principal intact and considered the
interest on that trust principal as recurring income. The
Guidelines provide that:
When income is received on an irregular, non-
recurring, or one-time basis, the court may
average or prorate the income over a specified
period of time or require an obligor to pay as
child support a percentage of his or her non-
recurring income that is equivalent to the
percentage of his or her recurring income paid
for child support.
Guidelines, 2005 Ann. R. N.C. 48-49 (emphasis added). The personal
injury settlement in this case was paid on a one-time, non-
recurring basis, thus meeting the Guidelines' definition of "non-
recurring income." If we were to adopt Mr. Spicer's contention
that because the trust gave rise to interest, the trust principal
should not be considered non-recurring income, then few lump sum
amounts would ever be considered non-recurring income, since
interest may be earned on almost any sum. The trial court did not,therefore, err when it sought to supplement the funds available for
the child's support by invading the trust principal.
 Finally, Mr. Spicer contends the trial court erred in
requiring that he pay both monthly payments and a lump sum payment.
N.C. Gen. Stat. § 50-13.4(e) (2003) provides, in relevant part:
Payment for the support of a minor child shall
be paid by lump sum payment, periodic
payments, or by transfer of title or
possession of personal property of any
interest therein, or a security interest in or
possession of real property, as the court may
This Court has previously held that a trial court "is not limited
to ordering one method of payment to the exclusion of the others
provided in the statute. The Legislature's use of the disjunctive
and the phrase 'as the court may order' clearly shows that the
court is to have broad discretion in providing for payment of child
support orders." Moore v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d
642, 644 (1978). Further, a trial court is not limited to the
methods of payment specified in the statute. Weaver v. Weaver, 88
N.C. App. 634, 637, 364 S.E.2d 706, 708-09 ("In utilizing this
provision, the trial court is vested with broad discretion, and is
not limited to ordering any one of the designated methods of
payment."), disc. review denied, 322 N.C. 330, 368 S.E.2d 875
(1988). We note that our Courts have specifically held, as Mr.
Spicer concedes, that a parent's property may be placed in trust to
secure or provide child support. Id. at 638, 364 S.E.2d at 709(affirming sale of real property to establish a trust securing
future child support). The trial court did not, therefore, err in
determining that Mr. Spicer's child support obligation could be
fulfilled by requiring income from both monthly payments and a lump
B. The Trial Court's Deviation from the Guidelines
 After determining (1) that applying the Guidelines to the
trust principal would result in payment of a lump sum of
$130,764.90 and (2) that payment of this amount would exceed the
minor child's reasonable needs and expenses and would be unjust and
inappropriate, the trial court decided to deviate from the
Guidelines. A trial court's deviation from the Guidelines is
reviewed under an abuse of discretion standard. State ex rel.
Fisher v. Lukinoff, 131 N.C. App. 642, 644, 507 S.E.2d 591, 593
Nevertheless, in deviating from the Guidelines, a trial court
must follow a four-step process:
First, the trial court must determine the
presumptive child support amount under the
Guidelines. Second, the trial court must hear
evidence as to the reasonable needs of the
child for support and the relative ability of
each parent to provide support. Third, the
trial court must determine, by the greater
weight of this evidence, whether the
presumptive support amount 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. Fourth,following its determination that deviation is
warranted, in order to allow effective
appellate review, the trial court must enter
written findings of fact showing the
presumptive child support amount under the
Guidelines; the reasonable needs of the child;
the relative ability of each party to provide
support; and that application of the
Guidelines would exceed or would not meet the
reasonable needs of the child or would be
otherwise unjust or inappropriate.
Sain v. Sain, 134 N.C. App. 460, 465-66, 517 S.E.2d 921, 926 (1999)
(internal citations and quotation marks omitted). Mr. Spicer
contends the trial court's findings of fact do not meet the
requirements of the fourth step regarding the reasonable needs of
the child and Mr. Spicer's ability to provide support.
We agree with Mr. Spicer that the trial court's findings of
fact are not adequate to allow us to review the basis for the
amount awarded as a result of the deviation. Our Supreme Court has
explained that "an order for child support must be based upon the
interplay of the trial court's conclusions of law as to (1) the
amount of support necessary to 'meet the reasonable needs of the
child' and (2) the relative ability of the parties to provide that
amount." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189
(1980) (quoting N.C. Gen. Stat. § 50-13.4(c)). These conclusions
must in turn be based on factual findings "specific enough to
indicate to the appellate court that the judge below took due
regard of the particular estates, earnings, conditions, [and]
accustomed standard of living of both the child and the parents." Id. (internal quotation marks omitted). Without sufficient
findings, an appellate court has no means of determining whether
the order is adequately supported by competent evidence. Id. The
Court stressed that "[i]t is not enough that there may be evidence
in the record sufficient to support findings which could have been
made. The trial court must itself determine what pertinent facts
are actually established by the evidence before it . . . ." Id.
In finding the facts relating to the reasonable needs of the
child for support and the relative ability of each parent to
provide support, the trial court must consider:
the reasonable needs of the child for health,
education, and maintenance, having due regard
to the estates, earnings, conditions,
accustomed standard of living of the child and
the parties, the child care and homemaker
contributions of each party, and other facts
of the particular case.
N.C. Gen. Stat. § 50-13.4(c1) (2003). These "factors should be
included in the findings if the trial court is requested to deviate
from the [G]uidelines." Gowing v. Gowing, 111 N.C. App. 613, 618,
432 S.E.2d 911, 914 (1993).
Here, the trial court did not make any specific findings
regarding the reasonable needs of the child. The court simply
found, without further explanation, that the child's reasonable
needs and expenses totaled $1,260.10 per month. The findings
contain no specific consideration of what amount is necessary for
the child's health, education, and maintenance. Nor does the ordercontain any findings as to actual expenditures. See Fisher, 131
N.C. App. at 646, 507 S.E.2d at 594 (trial court erred in failing
to make findings regarding mother's actual past expenditures on the
child's behalf); Savani v. Savani, 102 N.C. App. 496, 503, 403
S.E.2d 900, 904 (1991) ("'Evidence of actual past expenditures is
essential in determining [a child's] present reasonable needs.'"
(quoting Koufman v. Koufman, 97 N.C. App. 227, 232, 388 S.E.2d 207,
209 (1990), rev'd on other grounds, 330 N.C. 93, 408 S.E.2d 729
(1991))). See also 2 Suzanne Reynolds, Lee's North Carolina Family
Law § 10.17 at 547 (5th ed. 1999) ("The trial court must also make
specific findings as to the child's past and present expenses in
order to determine the reasonable needs of the child.").
Further, there is no indication that the trial court
considered the "accustomed standard of living of the child and the
parties," as required by N.C. Gen. Stat. § 50-13.4(c). The trial
court found that Mr. Spicer's gross income prior to the accident
was approximately $25,000.00 per year (or $2,083.33 per month).
Even taking into account added expenses for health insurance and
work-related child care _ which became necessary when Mr. Spicer
could no longer work _ the total "reasonable expenses" found by the
trial court, without explanation, of $2,875.10 for Ms. Spicer and
the child alone significantly exceeds the monthly expenses of the
family of three. While the trial court's finding of reasonableness
may be supportable and may reflect the trial court's assessment ofthe accustomed standard of living, we cannot make that
determination without more specific findings of fact.
We observe, although there is no finding saying so, that the
trial court appears to have adopted, without question, Ms. Spicer's
Affidavit of Financial Standing. This affidavit includes as
expenses for the four-year-old child alone: $600.00 per year in
Christmas gifts, $600.00 per year in birthday gifts, $75.00 per
month in restaurant meals, $75.00 per month in entertainment and
recreation, $150.00 per month in clothing, and $900.00 per year for
vacation. Without findings regarding the child's or parties'
accustomed standard of living and the reasonableness of the
expenses in light of that standard of living, we cannot determine
whether the trial court considered the standard of living factor
and whether the trial court's finding of reasonable needs _
including such generous expenses _ is supported by the evidence.
See Fisher, 131 N.C. App. at 649, 507 S.E.2d at 596 (reversing and
remanding for further findings regarding accustomed standard of
living and child's reasonable needs).
In the absence of specific findings regarding the child's
reasonable needs, taking into account the accustomed standard of
living, we are precluded from reviewing the basis of the award. We
cannot determine whether the lump sum awarded would actually exceed
the child's reasonable needs or, for that matter, whether it would
fail to meet the child's reasonable needs. We must, therefore,remand this case to the trial court for further findings of fact.
 Mr. Spicer further contends that the trial court erred by
failing to take "due regard" of his future medical expenses. Our
courts have required trial courts to "make findings of fact on the
parents' income, estates . . . and present reasonable expenses to
determine the parties' relative ability to pay." Newman v. Newman,
64 N.C. App. 125, 128, 306 S.E.2d 540, 542 (emphasis added), disc.
review denied, 309 N.C. 822, 310 S.E.2d 351 (1983). Mr. Spicer
cites no authority requiring a trial court to make findings
regarding possible future medical expenses. Our review of the
trial court's order reveals that the trial court did give due
regard to Mr. Spicer's present health and other related
circumstances, including the facts that Mr. Spicer is not living
independently, that the trust funds "are not expected to be
sufficient to meet [his] lifetime needs," and that most of his
current medical costs were covered by Medicare programs. These
findings were supported by competent evidence and are sufficiently
specific for us to determine that the trial court gave due regard
to Mr. Spicer's present condition and estate.
 Mr. Spicer also argues that the trial court applied a
"random" formula in determining the amount of the lump sum payment
to be drawn from his settlement for establishment of the child-
support trust. Although we have remanded this case for further
findings of fact, we note that our appellate courts have approvedtrial courts' use of formulas to determine child support. Plott v.
Plott, 313 N.C. 63, 79, 326 S.E.2d 863, 873 (1985) ("[A] formula
based on a ratio established by the parties' disposable income
figures seems a fair method to apply . . . . The judge's use of a
ratio seems to be supported by logic and reason, based upon simple
mathematics rather than simple guesswork."); Hamilton v. Hamilton,
57 N.C. App. 182, 184, 290 S.E.2d 780, 781 (1982) (encouraging
trial courts' use of formulas to promote consistency in the amount
of awards, particularly when "considerations of fairness dictate a
substantial departure from the standard award"). The trial court
may, upon remand, again use a formula, so long as it is based on
logic and reason and reaches a result consistent with the child's
reasonable needs in light of the parties' accustomed standard of
living and Mr. Spicer's ability to pay.
III. THE TRIAL COURT'S AWARD OF ATTORNEYS' FEES
 Mr. Spicer lastly contends that the trial court erred in
awarding fees to Ms. Spicer's counsel, arguing (1) that the trial
court failed to make sufficient findings of fact to support an
award of fees and (2) that the court "randomly" calculated the
number of hours to be compensated. We find that the trial court
did not err in its award of fees.
N.C. Gen. Stat. § 50-13.6 (2003) provides, in relevant part:
In an action or proceeding for the
custody or support, or both, of a minor child,
including a motion in the cause for themodification or revocation of an existing
order for custody or support, or both, 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; provided however, should the court
find as a fact that the supporting party has
initiated a frivolous action or proceeding the
court may order payment of reasonable
attorney's fees to an interested party as
deemed appropriate under the circumstances.
An award of attorneys' fees is within the sound discretion of the
trial judge. Stanback v. Stanback, 287 N.C. 448, 462, 215 S.E.2d
30, 40 (1975). When that discretion has been properly exercised in
accordance with the statutory requirements, the order must be
affirmed on appeal. Id.
In construing N.C. Gen. Stat. § 50-13.6, our courts have
distinguished between fee awards in proceedings solely for child
support and fee awards in actions involving both custody and
support. Stanback, 287 N.C. at 462, 215 S.E.2d at 40. Before a
court may award fees in an action solely for child support, the
court must make the required finding under the second sentence of
the statute: that the party required to furnish adequate support
failed to do so when the action was initiated. Id. On the other
hand, when the proceeding or action is for both custody andsupport, the court is not required to make that finding. Id. ("The
General Assembly, having limited the second provision to support
actions, apparently did not intend the requirement to apply to
custody or custody and support actions.").
A case is considered one for both custody and support when
both of those issues were contested before the trial court, even if
the custody issue is resolved prior to the support issue being
decided. See, e.g., Taylor v. Taylor, 343 N.C. 50, 54, 468 S.E.2d
33, 35 (1996) ("The instant action is properly characterized as one
for 'custody and support' because both the custody and support
actions were before the trial court [at] the times the case was
called for trial."); Forbes v. Forbes, 72 N.C. App. 684, 685, 325
S.E.2d 272, 273 (1985) ("In this case both custody and support were
contested. The plaintiff was not deprived of the right to have
attorney fees because the order for custody was entered before the
order for support."). In this case, the record shows that the
custody issue had not yet been resolved when the support hearing
began. The case was, therefore, one for both custody and support.
As a result, the sole required findings were that the party
seeking fees (1) acted in good faith and (2) lacks the means to
defray the expense of the suit. Gibson v. Gibson, 68 N.C. App.
566, 574, 316 S.E.2d 99, 105 (1984). The trial court made the
necessary findings and our review of the record reveals that each
of those findings was supported by competent evidence. As to defendant's contention that the court "randomly"
calculated the number of hours for which Ms. Spicer's counsel
should be paid, our review of the record reveals that the trial
court based its calculation on an extensive discussion with Ms.
Spicer's counsel as well as careful consideration of his affidavit
stating the number of hours he worked on Ms. Spicer's custody and
support claims. The trial court's fee award does not appear
manifestly unreasonable and, therefore, does not constitute an
abuse of discretion.
We affirm the trial court's ruling with respect to Mr.
Spicer's recurring income, its inclusion of the trust as non-
recurring income, and its award of attorneys' fees and expenses.
We remand, however, for further findings of fact as to the
reasonable needs of the child. The decision whether to hear
additional evidence is left to the sound discretion of the trial
Affirmed in part and remanded in part.
Judges BRYANT and ELMORE concur.
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