SUSAN SINCLAIR MCALLISTER ROBERTS, Plaintiff-Appellant, v.
MICHAEL W. MCALLISTER, Defendant-Appellee
1. Child Support, Custody, and Visitation--deviation from child support guidelines--
imputing minimum income
The trial court did not abuse its discretion by deviating from the North Carolina Child Support
Guidelines based on the reasonable needs of the children and by imputing minimum income to
plaintiff mother who is voluntarily unemployed, because plaintiff's support for the children has been
negligible including that: (1) although plaintiff had the financial ability, she did not establish any
residence in Charlotte where the children lived and only exercised visitation when she had the
children flown to Maryland even though the 3 September 2002 custody order provided that the
parties could share the placement of the children equally if plaintiff established a part-time residence
in Charlotte; and (2) although plaintiff testified the children's school schedule enabled her to spend
135 overnights with the children, she did not meet the goal of shared physical custody as she had
only seen the children in Maryland an average of one weekend per month over the previous year.
The trial court made specific findings of fact as to the parties' ability to pay as well as the reasonable
needs of the parties' three children.
2. Child Support, Custody, and Visitation_-support amount--failure to make sufficient
findings of fact
The trial court erred by entering an order requiring plaintiff mother to pay child support for
the parties' three children in the amount of $800 per month and by awarding defendant husband $800
per month in child support for the thirteen months between the date of entry of the child custody
order and the date of the support hearing, because: (1) N.C.G.S. § 50-13.4(c) provides that 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 the basis for the amount
ordered; and (2) while the trial court's findings were sufficient to support deviation, the findings
were insufficient to indicate the basis for the award of support in the amount of $800 as required by
N.C.G.S. § 50-13.4.
3. Child Support, Custody, and Visitation--uninsured medical expenses--failure to show
abuse of discretion
The trial court did not err by requiring plaintiff mother to pay one-half of the uninsured
medical expenses for the minor children, because: (1) it is in the trial court's discretion to determine
a fair sharing arrangement for uninsured medical expenses; (2) in deviation cases where assets,
estates, and incomes are taken into consideration, it is proper for the trial court to use methods other
than a comparative income analysis; and (3) plaintiff failed to show an abuse of discretion.
4. Child Support, Custody, and Visitation--attorney fees--reimbursement
The trial court did not abuse its discretion in a child support case by ordering plaintiff mother
to reimburse defendant father for half of his attorney fees, because: (1) N.C.G.S. § 50-13.6 grants
the trial court discretion to award reasonable attorney fees to an interested party acting in good faith
who has insufficient means to defray the expense of the suit; (2) the trial court made specific findings
as to defendant's inadequate monthly income, that his attorney fees were reasonable, and that such
fees were increased as a result of plaintiff's failure to contribute a reasonable sum to the support of
the children after being asked to do so; and (3) the trial court concluded defendant did not have
sufficient assets to pay his attorney fees and plaintiff has the means to pay half.
Judge JACKSON concurring in part and dissenting in part.
Appeal by plaintiff from an order dated 23 December 2003 by
Judge Rebecca B. Knight in Buncombe County District Court. Heard
in the Court of Appeals 19 April 2005.
Wyrick, Robbins, Yates & Ponton, L.L.P., by K. Edward Greene,
and Heidi C. Bloom, for plaintiff-appellant.
Ingrid K. Friesen, P.A., by Ingrid K. Friesen, for defendant-
appellee.
BRYANT, Judge.
Susan Sinclair McAllister Roberts (plaintiff) appeals from an
order dated 23 December 2003
awarding Michael W. McAllister
(defendant)
child support in the amount of $800.00 per month for
their three children, half of the uninsured medical expenses for
their children and attorneys' fees in the amount of $2,500.00.
Plaintiff and defendant were married on 7 February 1987 and
separated on 7 July 1999 when defendant left the marital home. Plaintiff and defendant are the parents of three minor children:
a son born 25
May 1993; a daughter born 29
January 1995; and
another daughter born 4
October 1997. Plaintiff has a bachelor's
degree in journalism from the University of North Carolina and for
the first five years of the parties' marriage, she worked in
various public relations positions. The maximum income plaintiff
earned was $25,000.00 in 1993, which was the last year plaintiff
worked during the marriage. By mutual agreement of the parties,
plaintiff did not work outside the home following the birth of
their first child in 1993. During the marriage, plaintiff was a
homemaker, the children's primary caregiver, and their home-school
teacher. For the duration of the marriage, plaintiff, defendant
and the three minor children lived solely on defendant's income,
which at the time of the parties' separation was $39,000.00.
Following their separation, plaintiff and defendant agreed
plaintiff would not return to work until the youngest child started
kindergarten in August 2003.
Defendant remarried in March 2001 and lives in Charlotte.
Together, defendant and his wife have a daughter who was born 21
May 2000. Defendant's wife has primary custody of her two children
from her first marriage. Following the entry of the McAllister
custody order in September 2002, defendant, his wife and their six
children all live primarily together. Defendant is employed atYork Technical College, earning approximately $40,000.00 per year.
Defendant's gross income per month is $3,351.33 and his net income
is $2,575.00 per month. Defendant maintains health insurance for
his wife and their six children at a cost of $254.00 per month.
In December 2000
, plaintiff remarried a physician, Scott
Roberts
and
moved to Rockville, Maryland. After a few years, they
returned to Asheville, North Carolina, where Dr. Roberts earned
approximately $300,000.00 per year. In June 2003,
plaintiff and
Dr. Roberts had a son. Plaintiff intends to stay home and provide
full time care for their son, until he is at least school age.
Plaintiff's estate consists of a savings account of $3,500.00 and
a checking account with approximately $30,000.00, both of which are
joint accounts with Dr. Roberts. Plaintiff and Dr. Roberts also
have a joint account containing $50,000.00 in proceeds from the
sale of their Maryland house. Dr. Roberts also receives $300.00
per month from the sale of the home he owned prior to his marriage
to plaintiff. Plaintiff has no income, and aside from the joint
accounts, she has a one-fifth interest of undetermined value in her
deceased mother's home.
On 20 August 1999 plaintiff filed a complaint against
defendant seeking child custody, child support, postseparation
support, alimony, equitable distribution and attorneys' fees.
Defendant filed an answer and counterclaim on 7 October 1999,asserting his own claims for child custody, child support and
equitable distribution. On 13 July 2000 plaintiff and defendant
entered into a consent judgment resolving the issues of equitable
distribution, child custody, child support arrearages, prospective
child support, postseparation support, and alimony. Pursuant to
the 13 July 2000 order: plaintiff was awarded, inter alia, primary
custody of the parties' three children; $18,800.00 from defendant
for the payment of back child support and lump sum alimony; a
portion of the proceeds from the sale of their home; and defendant
was ordered to pay plaintiff $875.00 per month in child support.
On 11 April 2002 defendant filed a motion to modify the
custody order of 13 July 2000. Plaintiff filed her own motion to
modify child custody on 8 May 2002.
On 3 September 2002, the trial
court entered an order modifying the July 2000 order by awarding
the parties joint legal and physical custody. The 3 September 2002
order suspended defendant's obligation to pay child support.
On 9 October 2002 plaintiff filed a motion in the cause
requesting a modification of the 3 September 2002 order to clarify
the circumstances of her parenting time; specifically, whether the
children could visit her in Maryland. On 16 October 2002,
defendant filed a response as well as a motion for child support.
On 30 July 2003 defendant filed a notice of intent to deviate from
guidelines and on 18 September 2003 counsel for defendant filed anaffidavit of attorneys' fees. On 23 December 2003, the trial court
entered an order requiring plaintiff to pay defendant $800.00 per
month as prospective child support. The trial court further
ordered plaintiff to pay defendant $10,400.00 for child support
arrearages accruing from September 2002 through the date of the
support hearing and attorneys' fees in the amount of $2,500.00.
Plaintiff appeals.
10. The reasonable needs of the three
[McAllister] children, . . .for health,
education, and maintenance, total
$2087.36, as follows: $597.00 are for
specific child related expenses[,]
$1,362.75 represent the children's share
of the total household expenses. $127.61
is the monthly health insurance expense
for the children.
. . .
15. [P]laintiff . . . has had previous high
risk pregnancies, and miscarriages . . .
and prevented her from having the ability
to work. Her infant[] is three months old
as of the date of the hearing.
[Plaintiff's] husband, Scott Roberts, isa physician who earned $300,000 per year
and recently relocated to Asheville,
North Carolina[.] Scott Roberts pays all
of the living expenses for [plaintiff]
and [their son] and does not request or
expect any contribution from [plaintiff]
for household expenses. [They agree] that
Scott Roberts will provide financial
support and work outside the home and
[plaintiff] will stay at home and provide
full time care of [their son].
16. [Plaintiff] has assets as part of her
financial estate, that include:
(A) A marital interest in joint accounts
with Scott Roberts totaling $33,500.00.
This account may include amounts
deposited by [p]laintiff during her
marriage to Scott Roberts, including:
1. $75,000.00-$80,000.00 lump sum
payment received after the sale of the
marital home owned with defendant . . .
[which] represented a 55% share of the
marital estate in equitable distribution
settlement, a lump sum alimony payment
and child support arrears. The marital
property was divided by consent
agreement. . . .
2. Proceeds from the sale of 1987
Honda after her marriage to Scott. The
plaintiff does not know the sale price of
the Honda.
3. $20,000.00 cash inherited from
her mother and deposited during the
summer of 2003.
(B)
A marital interest in Closing
proceeds totaling $50,000.00 Cash from
the July 2003 sale of . . . the
[Maryland] marital home of Scott and
[plaintiff] that was . . . sold in July2003 for $490,000.00. The cash is in a
joint account with her husband.
(C)
1/5 interest in [plaintiff's]
mother's home in Concord [which is for
sale]. The plaintiff does not know the
fair market value of her mother's home.
(D)
A marital interest in $300.00 per
month income from sale of real property
in Haw Creek.
(E)
Plaintiff currently has no debt.
. . .
19. [P]laintiff is voluntarily unemployed.
[Plaintiff and defendant] had agreed . .
. plaintiff would not work outside the
home after their first child was born.
[Plaintiff and] Dr. Roberts, have agreed
[she] would not work outside the home
after their marriage. The plaintiff has
no intentions to obtain employment and
had no intention to obtain employment
after the entry of the September 2003
custody order prior to becoming pregnant
in the fall of 2002.
. . .
23. Since there is no recent work history,
the [c]ourt can not impute potential
income based on [plaintiff's] 1993
employment at Concord Hospital earning
$25,000.00 per year. The evidence
suggests an employee with [] plaintiff's
educational background could obtain
employment in the Charlotte area earning
$35,000.00 per year but there is no
evidence concerning prevailing job
opportunities and earning levels in
Maryland (August 2003) or in Buncombe
County (September 2003). The guidelines
provide If the parent has no recent workhistory or vocational training, potential
income should not be less than minimum
hourly wage for a 40 hour week. The
Court has calculated the support using
minimum wage, but has no reasonable basis
sum in excess of minimum wage. To use any
other sum would be arbitrary.
. . .
25. The child support guidelines are
inequitable and inadequate to meet the
reasonable needs of [the McAllister
children] for several reasons: First, it
is unjust to the [sic] give the plaintiff
a deduction of $765.00 from her income
for the support of her [and Scott's] son.
Scott's extremely high income of
$25,000.00 per month establishes a very
high support amount regardless of the
plaintiff's income being minimum wage or
even $35,000.00 per year. The $765.00 for
a three month old baby exceeds the
guideline amount of support of $266.00
for [the McAllister children], three
school aged children with significantly
higher financial needs for their support.
In addition, Scott and the plaintiff have
a marital agreement that the plaintiff
will not be asked or expected to
contribute to any of the financial
support for [their son] or the marital
household. Scott provides 100% of [their
son's] and the plaintiff's financial
support and is more than able to do so.
Secondly, the actual needs of the
[McAllister] children, . . . greatly
exceed the guideline amount. In addition,
the defendant is unable to bear the
financial responsibility for these
children without contribution from the
plaintiff. The plaintiff's attitude that
the defendant needs to live within his
means without incurring credit card and
other debt is naive and unrealistic. Theplaintiff has a significant cash estate
of her own monies, and her marital
interest in joint assets, that she could
use to pay a reasonable portion of the
care of the children.
(Emphasis in original). Based on these findings, the trial court
made the following conclusions:
5. The plaintiff has the ability to
contribute $800.00 per month to the
support of the [McAllister] children and
that sum constitutes a deviation from the
child support guidelines.
6. Application of the guidelines would not
meet the reasonable needs of the
[McAllister] children, considering the
relative ability of each parent to
provide support and would be other wise
unjust or inappropriate.
The determination of whether to impute income to a parent who
is voluntarily unemployed is a determination based in part on the
conduct of the parent. Wolf v. Wolf, 151 N.C. App. 523, 566 S.E.2d
516, (2002). In Wolf the Court cited these factors to be
considered when determining whether a parent had disregarded
marital and parental obligations:
(1) failing to exercise [her] reasonable
capacity to earn,
(2) deliberately avoiding [her] family's
financial responsibilities,
(3) acting in deliberate disregard for [her]
support obligations,
(4) refusing to seek or to accept gainful
employment,
(5) willfully refusing to secure or take a
job, (6) deliberately not applying [herself] to
[her] business,
(7) intentionally depressing [her] income to
an artificial low, or
(8) intentionally leaving [her] employment to
go into another business.
Wolf at 527, 566 S.E.2d at 518-19 (c
iting Bowes v. Bowes, 287 N.C.
163, 171-72, 214 S.E.2d 40, 45 (1975)).
In order to base an award
on earning capacity the finder of fact must have before it
sufficient evidence of the proscribed intent. Intent being a
mental attitude, it must ordinarily be proven, if proven at all, by
circumstantial evidence, that is, by proving facts from which the
fact sought to be proven may be inferred. Bowes at 173-74, 214
S.E.2d
at 46. Further, a determination of bad faith in conjunction
with suppression of income is best made on a case-by-case basis.
Pataky v. Pataky, 160 N.C. App. 289, 307
, 585 S.E.2d 404, 415
(2003)
.
In the case sub judice, the trial court found that
[plaintiff] also failed to seek or obtain employment . . . . There
is no evidence that she was withholding support to hurt or punish
her children but she clearly has a naive indifference to their need
for financial support from her. This naive indifference
prompted the trial court to conclude that plaintiff's indifference
to the children's need for support was intentional and willful
avoidance and showed a deliberate disregard of her responsibilityto support her children. Because plaintiff had not been employed
for eleven years, the trial court imputed income to her as allowed
by the Child Support Guidelines in the amount of minimum wage. See
Mittendorff v. Mittendorff, 133 N.C. App. 343, 515 S.E.2d 464
(1999) (holding the burden was on
the non-custodial mother to prove
that the she had acted in good faith in taking a lower paying job
in seeking a reduction of child support based on her reduction in
income).
Plaintiff argues that minimum wage income should not be
imputed to her because she was unemployed due to several
miscarriages and a high-risk pregnancy. The trial court, however,
found plaintiff has consistently testified that she had no
intention of working, and that her subsequent pregnancies were
initiated after the 3 September 2002 child custody order required
plaintiff to establish a part time residence in Charlotte where
defendant lived. Plaintiff cites Pataky, in support of the
proposition that she should not be deemed to be acting in bad faith
merely because she was unemployed by choice. However, Pataky is
distinguishable. In that case, after the parties entered into a
shared physical custody
agreement, defendant gave notice of his
intention to quit his computer programming job earning $65,000
annually to pursue a graduate degree in school counseling. Pataky
at 291, 585 S.E.2d at 406. Further, defendant had developed a planto meet his financial obligations to his children while he attended
school. Id. In Pataky, the Court recognized that where a
defendant becomes unemployed by choice in order to become a
fulltime student, there may not be bad faith if he continues to
provide adequate support for his children. The Pataky Court found
that the defendant continued to provide for the support of his
children during the period he had fifty percent physical custody of
his children and abided by his agreement with the child's mother.
Id. at 308, 585 S.E.2d at 416.
In the instant case, plaintiff's support for the children has
been negligible. The 3 September 2002 custody order provided that
plaintiff and defendant could share the placement of the children
equally if the plaintiff established a part time residence in
Charlotte. The trial court found that although plaintiff had the
financial ability she did not establish any residence in Charlotte
and only exercised visitation when she [had] the children flown to
Maryland. Although plaintiff testified the children's school
schedule enabled her to spend 135 overnights with the children, the
evidence showed she did not meet the goal of shared physical
custody, as she had only seen the children in Maryland an average
of one weekend per month over the previous year.
In calculating a
guideline amount of child support, the court calculated a deduction
for her newborn son and still determined the guidelines areinequitable and inadequate to meet the needs of the [McAllister]
children. The trial court made specific findings of fact as to
the parties' ability (and inability) to pay as well as the
reasonable needs of the three McAllister children. The trial court
followed the Spicer four-step test and made the necessary findings
of fact to support deviation from the Guidelines. This assignment
of error is overruled.
I concur with the majority in its holdings affirming the
payment of half of the children's uninsured medical expenses and
the payment of defendant's attorneys' fees.
However, I
respectfully dissent from the portion of the majority opinion
holding that the trial court properly deviated from the North
Carolina Child Support Guidelines.
The majority correctly states that the trial court must follow
a four-step process in order to deviate from the North Carolina
Child Support Guidelines. While I agree with the majority that the
trial court adequately followed the first three of these steps, I
disagree that it sufficiently followed the final step to allow this
Court to conduct an effective review of its decision. This final
step requires the trial court to make written findings of fact
showing the presumptive child support amount under the Guidelines;
the reasonable needs of the [children]; 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 [children] or would be otherwise unjust or inappropriate.
Spicer v. Spicer, 168 N.C. App. 283, 292, 607 S.E.2d 678, 685
(2005) (citation omitted). Failure to make findings of fact, which
are adequate to allow sufficient appellate review, regarding this
issue requires that the case be remanded to the trial court for
further findings of fact. Gowing v. Gowing, 111 N.C. App. 613, 432S.E.2d 911 (1993).
The trial court's finding of fact pertaining to the
presumptive child support amount was sufficient, as it demonstrated
that plaintiff's support obligation pursuant to the guidelines
would be $50.00 - the minimum support obligation provided for by
the guidelines, regardless of whether income was imputed to her or
not. However, I would hold that the trial court's findings of fact
as to the remaining considerations were insufficient.
In its findings of fact relative to the reasonable needs of
the children, the trial court made the following finding of fact:
Defendant's household expenses are as follows:
The mortgage payment is $1,100.00 per month,
the car payment is $132.00 per month;
transportation expenses are $54.00 per month;
utilities total $482.00 per month; food and
school lunches are $1,866.00 per month; the
total household expenses (housing, utilities,
vehicle and food) shared by the eight family
members are $3,634.00 per month. These
expenses do not include any expenses related
to specific individuals, but are the expenses
for all of the persons in the household. These
expenses are substantial, but in light of the
fact the household consists of six children
and two adults, they do not appear to be
unreasonable or inflated. The only reasonable
way to determine the children's expenses for
shelter, food and transportation, is to divide
those total household expenses by the number
of household members. Three-eights of that
expense is $1,362.75 per month.
Because defendant's new wife, new child and two step-children also
lived in the house, use of this division of expenses isimpermissible as it potentially imposes a support obligation on
plaintiff for members of the household other than plaintiff's
children. Evans v. Craddock, 61 N.C. App. 438, 441, 300 S.E.2d
908, 911 (1983). The use of this impermissible allocation results
in the trial court's findings of fact regarding the reasonable
needs of the children being inadequate to allow this Court to
review the trial court's ultimate determination. Accordingly, I
would remand this case for further findings of fact regarding the
reasonable needs of the McAllister children.
In addition, I would hold that the trial court's findings of
fact regarding plaintiff's ability to provide support are
insufficient. In its findings regarding plaintiff's estate,
earnings and condition, the trial court emphasizes the substantial
income of plaintiff's current husband even though he has no support
obligation to the McAllister children - the children in question
here. Duffey v. Duffey, 113 N.C. App. 382, 384, 438 S.E.2d 445,
447 (1994). The North Carolina Child Support Guidelines
specifically exclude the income of a parent's new spouse from the
calculation of that parent's income for support purposes. AOC-A-
162, Rev. 10/02 p. 3. Nonetheless, it was proper for the trial
court to note that plaintiff's new husband provided for all of her
expenses as that fact bears directly upon her condition. When the
new spouse provides for all expenses, the support obligation may becalculated without deducting expenses from the supporting parent's
income. Hamilton v. Hamilton, 57 N.C. App. 182, 184, 290 S.E.2d
780, 781 (1982). Further, the contributions of a third party may
be used to support deviation from the child support guidelines.
Guilford County by & Through Child Support Enforcement Agency v.
Easter, 344 N.C. 166, 171, 473 S.E.2d 6, 9 (1996).
In its findings regarding plaintiff's estate, the trial court
found that plaintiff had marital interests in: joint accounts with
her new husband with balances totaling $33,500.00; another account
consisting of proceeds from the sale of the Robert's marital home
in Maryland valued at $50,000.00; and $300.00 per month in rental
income. The trial court went on to find that the joint accounts
may have included amounts deposited by plaintiff representing a
$75,000.00-80,000.00 lump sum payment received by plaintiff as an
equitable distribution settlement, a lump sum alimony payment, and
child support arrears, all from defendant. The trial court made no
specific findings as to how much of the lump sum payment was
attributable to the alimony or child support arrears. The trial
court further found that the account balances also might have
reflected deposits from the proceeds of the sale of plaintiff's car
- for which no value was found - and a $20,000.00 cash inheritance
plaintiff received from her mother's estate. No findings of fact
were made that account for the extreme disparity between theamounts possibly contributed to the accounts by plaintiff (at least
$95,000.00-100,000.00) and the current balance or balances of
$35,000.00. Also included in plaintiff's estate by the trial court
was a one-fifth interest in her mother's home of indeterminate
value. Given this lack of specificity, I would hold that it is
impossible for this Court to make a sufficient determination of the
value of plaintiff's estate and its corresponding effect on her
ability to pay support for her children from these findings.
With regard to plaintiff's ability to pay support, I would
hold that the trial court erred in imputing income to plaintiff.
The North Carolina Child Support Guidelines require that a parent's
voluntary unemployment or underemployment be the result of the
parent's bad faith or deliberate suppression of income to avoid or
minimize his or her child support obligation . . . . AOC-A-162,
Rev. 10/02 p. 3.
The trial court made findings of fact relating to plaintiff's
lack of recent employment history and the fact that her
unemployment had been, and continues to be, the result of her
decision not to work until her children reach school age. The
trial court further found that plaintiff had no intention of
obtaining employment, consistent with her decision to stay home
with her children considering the fact that she had a three-month-
old child at the time of the hearing. This decision reflects apersonal choice made jointly with each spouse during the course of
their respective marriages.
Based upon these findings of fact, the trial court concluded
that: (1) plaintiff's unemployment was voluntary; (2) plaintiff had
disregarded her obligation to support her three children with
defendant; (3) plaintiff's actions were intentional and willful
avoidance and deliberate disregard of her support obligation to her
children with defendant. The only conclusion referenced above that
is supported by competent evidence is that plaintiff's unemployment
was voluntary. There was no evidence in the record to support the
conclusion that plaintiff willfully and intentionally avoided or
deliberately disregarded her support obligation. Plaintiff simply
adopted the same parenting arrangement with her new spouse that she
had with defendant. See Pataky v. Pataky, 160 N.C. App. 289, 307,
585 S.E.2d 404, 416 (2003) ('[t]he dispositive issue is whether a
party is motivated by a desire to avoid his reasonable support
obligations.')(quoting Wolf v. Wolf, 151 N.C. App. 523, 527, 566
S.E.2d 516, 519 (2002)). Significantly, this parenting arrangement
is substantially the same as the arrangement defendant has with his
current spouse who works part-time and earns only $333.00 per
month.
Further, nowhere in the trial court's findings of fact or
conclusions of law is there any suggestion that plaintiff'sunemployment was a result of a bad faith or deliberate suppression
of income to avoid or minimize [] her child support obligation as
required for the imputation of income under the North Carolina
Child Support Guidelines. Consequently, I would hold that the
imputation of income to plaintiff was erroneous as it is not
supported by the evidence.
Accordingly, I would hold that the trial court failed to make
findings sufficient to allow adequate review of the decision to
deviate from the statutory child support guidelines. I would
remand this action to the trial court for further findings of fact
regarding the reasonable needs of the children and plaintiff's
estate and reverse the trial court's decision to impute income to
plaintiff.
*** Converted from WordPerfect ***