State v Zimmerman, (04-1236) 07/05/2005

Appeal by plaintiff from order entered 3 June 2004 by Judge Fritz Y. Mercer, Jr. in District Court, Mecklenburg County. Heard in the Court of Appeals 2005.

Attorney General Roy Cooper, by Assistant Attorney General Lisa Bradley Dawson, for plaintiff-appellant.

No brief filed for defendant-appellee.

McGEE, Judge.

    Plaintiff and defendant were married on or about 21 April 1990 and separated on 3 March 2004. Three children were born of their marriage. A complaint dated 12 April 2004 was filed seeking child support for the three minor children.
    The trial court entered an order deviating from the presumptive support payment provided by the North Carolina Child Support Guidelines (the Guidelines). The trial court found that the recommended child support payment under the Guidelines was $1,098.00 per month, and that such an amount was reasonable. However, the trial court deviated from the Guidelines and ordered that, beginning 1 June 2004, defendant pay $874.00 in monthly child support. The trial court made the following additional finding of fact: "Judge deviated from the Guideline[s] amount based upon the defendant's income."
    Plaintiff argues that the trial court erred in deviating from the Guidelines because there were not adequate findings of fact to support the deviation. We agree.
    The child support amounts recommended by the Guidelines are presumptively adequate to cover the reasonable needs of the child and are equitable to both parents based on their ability to pay. N.C. Gen. Stat. § 50-13.4(c)(2003). A trial court may deviate from the Guidelines if it finds that the greater weight of the evidence shows that, based on the child's needs and each parent's ability to pay, the recommended amount is inadequate, excessive, or otherwise unjust or inappropriate. N.C. Child Support Guidelines, 2005 Ann. R. N.C. 47; N.C. Gen. Stat. § 50-13.4(c). To deviate from the Guidelines, a trial court must make written findings of fact stating: (1) the presumptive amount under the Guidelines; (2) the child's reasonable needs and the parents' ability to pay; (3) support for the conclusion that the presumptive amount is inadequate, excessive, unjust, or inappropriate; and (4) the basis on which the trial court ordered the determined amount. N.C. Child Support Guidelines, 2005 Ann. R. N.C. 47; Rowan County DSS v. Brooks, 135 N.C. App. 776, 778-79, 522 S.E.2d 590, 591-92 (1999).     When reviewing a trial court's deviation from the Guidelines,this Court applies an abuse of discretion standard. Brooks, 135 N.C. App at 778, 522 S.E.2d at 591. The trial court must make written findings of fact in order to allow the reviewing court to determine whether the trial court's ruling was an abuse of discretion. Leary v. Leary, 152 N.C. App. 438, 442, 567 S.E.2d 834, 837 (2002)
    In Sain v. Sain, the trial court failed to make any findings as to the child's reasonable needs or that the defendant's disability rendered the guideline-recommended amount inequitable. 134 N.C. App. 460, 466, 517 S.E.2d 921, 926 (1999). This Court therefore remanded the matter to the trial court for proper findings. Id.; see also Brooker v. Brooker, 133 N.C. App. 285, 291, 515 S.E.2d 234, 239 (1999) (remanding the case to the trial court because, even though the trial court made findings as to the reasonableness of some of the defendant's expenses, the trial court made no findings of fact regarding the child's reasonable needs or the parents' relative ability to support the child).
    In the case before us, the trial court's order includes the following pertinent findings:
        6.    The financial information shown on the worksheet attached hereto is adopted by the court as further finding of fact. Based thereon, the amount of support under the current Child [S]upport Guidelines is $1,098.00 monthly and that amount is reasonable. Said child support shall be effective [1 June 2004].

        . . . .

        8.    Additional Finding of Fact[]: Judge deviated from the Guideline amount based upon the defendant's income.The trial court found that defendant's income was a factor in deviating from the presumptive child support payment. However, the trial court made no specific finding as to defendant's "relative ability" to pay, a finding which requires an examination of "'estates, earnings, conditions, [and] accustomed standard of living' of both the child and the parents." See Coble, 300 N.C. at 712, 268 S.E.2d at 189 (citation omitted). The trial court also did not conclude that the Guideline amount would be inadequate, excessive, or otherwise unjust or inappropriate. N.C.G.S. § 50- 13.4(c).
    Since the trial court's findings are not adequate to allow this Court to properly determine whether the trial court abused its discretion in deviating from the presumptive child support payment, the trial court's order must be vacated and this matter remanded for further findings.
    We note that finding of fact number 6 conflicts with decretal paragraph number 3, resulting in the order being internally inconsistent. The trial court finds the amount of support under the Guidelines is "$1,098.00 monthly and that amount is reasonable. Said child support shall be effective 6-1-04." However, decretal paragraph 3 directs the defendant to pay $874.00 per month effective 1 June 2004.
    We further note that the trial court's order includes what may be the handwritten signature of plaintiff, Kimberly Zimmerman, below the signature of the trial judge. There are no words or other indication of the import, if any, of the signature. Wecannot determine, for example, if the signature was intended to show plaintiff's consent to the $874.00 per month prospective child support amount. Defendant has not argued that plaintiff agreed to this amount, and our Court has not considered this issue.
    The record does not include a transcript and we are unable to determine what evidence, if any, was heard by the trial court prior to its decision to deviate from the child support Guidelines. Upon remand, the trial court may in its discretion receive additional evidence before entering a new order.
    Vacated and remanded.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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