Appeal by plaintiff from an order filed 28 April 2004
, nunc
pro tunc 24 February 2004 by Judge Jerry F. Waddell in Carteret
County District Court. Heard in the Court of Appeals 10 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Brenda Eaddy, for the State, on behalf of plaintiff Teresa
Gillikin.
Wheatly, Wheatly, Nobles, Weeks, Valentine & Lupton, P.A., by
Stephen M. Valentine, for defendant Dennis McGuire.
BRYANT, Judge.
The State of North Carolina, on behalf of Teresa Gillikin
(plaintiff), appeals an order filed 28 April 2004, nunc pro tunc 24
February 2004. We reverse and remand to the trial court for
further findings of fact and conclusions of law consistent with
this opinion.
Facts
On 10 December 2001, a summons and complaint was filed by the
State of North Carolina Child Support Enforcement Agency in
Carteret County on behalf of plaintiff. Plaintiff is the mother of
the minor child in this action. The complaint alleged that
defendant was the biological father of the minor child and
requested an adjudication of paternity. The complaint also
requested child support, medical insurance coverage, and
reimbursement to the State of North Carolina for its contribution
to the support of this child in the form of past paid public
assistance. Defendant timely answered the complaint and filed
accompanying motions to dismiss.
This matter came for hearing at the 24 February 2004 civil
session of Carteret County District Court with the Honorable Jerry
F. Waddell presiding. By the date of trial the parties had obtained
DNA genetic testing. The results showed the probability that
defendant was the biological father of the minor child was 99.99
percent.
Both parties testified at the hearing. Plaintiff informed the
court she was not working because she was disabled and received$680.00 per month in disability income. In addition, the minor
child in this action received a payment of $139.00 per month due to
plaintiff's disability and was on Medicaid for health insurance
coverage. Defendant testified he also was not working because he
was disabled. He informed the court he received approximately
$1,038.00 per month in social security disability, and
approximately $2,200.00 per month in veteran's disability pay.
Amy Oden, the Carteret County child support agent who manages
this case, was the last to testify at this hearing. Oden informed
the court the State was requesting child support beginning from the
date of the filing of the complaint, and $4,694.00 in repayment of
past paid public assistance which the State of North Carolina paid
as a grant to plaintiff to assist her in supporting her minor
child.
The trial court ruled it would not order repayment of past
paid public assistance because during the time plaintiff was
receiving these benefits other people had been named as potential
fathers of the minor child. The trial court also found, that while
prospective child support back to the date of the filing of the
complaint is owed, the amount could not be determined because both
plaintiff and defendant were receiving disability income. However,
the trial court held that ongoing child support beginning on 1
March 2004 was appropriate and set the payment at the minimum
amount of $56.00 per month. In addition, the trial court found
defendant did not have to provide medical insurance coverage for
the minor child but was required to cooperate with plaintiff inapplying for social security benefits for the child. The State
appealed on behalf of plaintiff.
_________________________
On appeal, plaintiff raises the issues of whether the trial
erred: (I) in its award of ongoing child support because it
improperly deviated from the presumptive guidelines; (II) in its
denial of prospective child support; and (III) in its denial of
reimbursement to the State for past paid public assistance.
I
[1] Plaintiff first argues the trial court erred when it set
ongoing child support payments at $56.00 per month because the
trial court did not properly deviate from the presumptive child
support guideline amount. Section 50-13.4(c) of the North Carolina
General Statutes provides:
The court shall determine the amount of child
support payments by applying the presumptive
guidelines established pursuant to subsection
(c1) of this section. However, 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 each parent 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.
N.C. Gen. Stat. § 50-13.4(c) (2003).
“Child support is to be set in such amount 'as to meet 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.'”
Buncombe County ex rel. Blair v. Jackson, 138 N.C. App.
284, 287, 531 S.E.2d 240, 243 (2000) (quoting N.C. Gen. Stat. §
50-13.4(c)). “Child support set consistent 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.”
Id.
A court may deviate from the guidelines established pursuant
to Chapter 50 in two situations: (1) when application of the
guidelines does not meet or exceed the reasonable needs of the
child; or (2) when application would be unjust or inappropriate.
N.C.G.S. § 50-13.4(c) (2003). “If the trial court determines that
the application of the guidelines would be inequitable or otherwise
deviates from the guidelines, 'the court must hear evidence and
find facts related to the reasonable needs of the child for support
and the parents ability to pay.'”
Hendricks v. Sanks, 143 N.C.
App. 544, 549, 545 S.E.2d 779, 782 (2001) (quoting
Biggs v. Greer,
136 N.C. App. 294, 297, 524 S.E.2d 577, 581 (2000)).
In the instant case, the trial court failed to make any
finding regarding the reasonable needs of the child for support.
This Court has previously held failure of the lower court to make
findings regarding the reasonable needs of the child for supportmandates remand for further findings of fact.
See Hendricks, 143
N.C. App. at 549, 545 S.E.2d at 782;
State ex rel. Fisher v.
Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591 (1998). Accordingly,
we remand to the lower court for further findings of fact and
conclusions of law consistent with this opinion. Whether the
taking of additional evidence is necessary, we leave this matter in
the lower court's discretion.
II
[2] Plaintiff next argues the trial court erred when it failed
to order prospective child support from January 2002, the next
month after the Complaint was filed, up through March 2004, the
month the court's order was entered. In its Paternity and Child
Support Order, the trial court found while prospective child
support back to the date of the filing of the complaint is owed, an
amount could not be determined because both plaintiff-mother and
defendant are receiving disability income.
Prospective child support is normally determined under the
North Carolina Child Support Guidelines.
See Taylor v. Taylor, 118
N.C. App. 356, 362, 455 S.E.2d 442, 446 (1995),
rev'd on other
grounds, 343 N.C. 50, 468 S.E.2d 33 (1996). As in Issue I,
supra,
for an award of prospective child support the court must make
findings regarding the reasonable needs of the child for that
support.
Id. If the trial court decides not to order prospective
child support, it must show that it properly deviated from the
Guidelines and include appropriate findings of fact to justify the
deviation.
Lukinoff, 131 N.C. App. at 647, 507 S.E.2d at 595. Accordingly, we remand to the lower court for further findings of
fact and conclusions of law consistent with this opinion.
III
[3] Lastly, plaintiff argues the trial court erred by failing
to order defendant to reimburse the State of North Carolina for
past paid public assistance given to the minor child. “Acceptance
of public assistance by or on behalf of a dependent child creates
a debt, in the amount of public assistance paid, due and owing the
State by the responsible parent or parents of the child.” N.C.
Gen. Stat. § 110-135 (2003). In determining whether to grant
reimbursement under N.C.G.S. § 110-135, the trial court is vested
with “considerable discretion to consider both law and equity . .
. .”
Moore County ex rel. Evans v. Brown, 142 N.C. App. 692, 695,
543 S.E.2d 529, 531 (2001).
When ruling on issues of child support, the “trial court may
consider the conduct of the parties, the equities of the given
case, and any other relevant facts.”
Maney v. Maney, 126 N.C. App.
429, 431, 485 S.E.2d 351, 352 (1997). “Trial court orders
regarding the obligation to pay child support are accorded
substantial deference by appellate courts and our review is limited
to a determination of whether there was a clear abuse of
discretion.”
Moore County ex rel. Evans, 142 N.C. App. at 694-95,
543 S.E.2d at 531 (citations and internal quotations omitted).
“Where trial is by judge and not by jury, the trial court's
findings of fact have the force and effect of a verdict by a jury
and are conclusive on appeal if there is evidence to support them,even though the evidence might sustain findings to the contrary.”
In re Estate of Trogdon, 330 N.C. 143, 147, 409 S.E.2d 897, 900
(1991).
In the instant case, the trial court held:
The court will not order the Defendant to
reimburse the State of North Carolina any
amount that had been paid out due to the fact
that during the time that Plaintiff was
receiving said benefits other people had been
named as potential fathers of this minor
child. The Court does not feel that it was
fair to have this Defendant pay back said
monies due to negligence on plaintiff's
behalf.
At the hearing the trial court expressed its concern over the fact
that Teresa Gillikin had named multiple persons as the minor
child's father and waited over fifteen years before instituting
this lawsuit against defendant. The trial court went on to hold:
the time when a lot of this past public
assistance was accrued, was the same period of
time when [Gillikin] had named somebody else
[as the minor child's father]. Now, I'm
supposed to say, “Oh, well, I'm just going to
discount all of that and make [defendant]
pay?” That's just not fair and I'm not going
to do it.
In light of the trial court's ability to consider equitable factors
in determining whether to order reimbursement, and in light of the
highly deferential standard under which we must review its order,
we hold this evidence sufficient to show that the trial court's
denial of plaintiff's request was not wholly unsupported by reason,
or otherwise a manifest abuse of discretion. This assignment of
error is overruled.
Affirmed in part, reversed and remanded in part. Judges WYNN and JACKSON concur.
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