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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.
THE STATE OF NORTH CAROLINA AND FORSYTH COUNTY BY AND THROUGH ITS
CHILD SUPPORT ENFORCEMENT UNIT, ET AL.
, O/B/O CHERYL WILLIAMS,
Plaintiff, v. MICHAEL WILLIAMS, Defendant
Filed: 17 October 2006
1. Appeal and Error_assignment of error_citation of authority_required
An assignment of error without cited authority was deemed abandoned.
2. Child Support, Custody, and Visitation_support_capacity to earn_findings that
income deliberately depressed
The trial court erred by considering a child support defendant's capacity to earn without
findings to support a conclusion that defendant deliberately depressed income or indulged in
excessive spending to avoid responsibilities.
3. Child Support, Custody, and Visitation_support_income_car and house_payments
made by parent to third-party
The trial court erred when calculating child support by not including as attributable
income to the mother vehicle and housing payments made by her father to a friend for the house
she and the children lived in and the car she used.
Appeal by defendant from order entered 16 December 2005 by
Judge George A. Bedsworth in Forsyth County District Court. Heard
in the Court of Appeals 20 September 2006.
John L. McGrath, for plaintiff-appellee.
Morrow Alexander & Porter, PLLC, by Elise Morgan Whitley, for
Michael Williams (defendant) appeals from order entered
establishing the amount of his child support obligation. We
reverse and remand.
Cheryl Williams (plaintiff) and defendant were married on 26
November 1994 and divorced on 1 August 2005. Three children (the
children) were born of the marriage during the years of 1995,
1996, and 1998. Since the date of the parties separation on 10 May
2004, the children have resided primarily with plaintiff.
On 29 June 2005, the Forsyth County Child Support Enforcement
Agency filed a complaint seeking child support from defendant on
behalf of plaintiff. Following a hearing on 8 November 2005, the
trial court made findings of fact and conclusions of law and
entered an order on 13 December 2005. The trial court calculated
plaintiff's monthly gross income to be $893.00, defendant's monthly
gross income to be $3,200.00, and ordered defendant to pay $728.51
per month in child support. Defendant appeals.
Defendant asserts the trial court erred by: (1) concluding he
has the present means and ability to satisfy the ordered child
support payment; (2) calculating his monthly gross income and
imputing income to him without supporting findings of fact he is
voluntarily underemployed or deliberately suppressing his income in
bad faith; and (3) calculating plaintiff's monthly gross income.
III. Standard of Review
When determining a child support award, a trial judge has a
high level of discretion, not only in setting the amount of the
award, but also in establishing an appropriate remedy. Taylor v.
Taylor, 128 N.C. App. 180, 182, 493 S.E.2d 819, 820 (1997) (citing
Moore v. Moore, 35 N.C. App. 748, 751, 242 S.E.2d 642, 644 (1978)). '[A]bsent a clear abuse of discretion, a judge's determination of
what is a proper amount of support will not be disturbed on
appeal.' Id. at 181, 493 S.E.2d at 819 (quoting Plott v. Plott,
313 N.C. 63, 69, 326 S.E.2d 863, 868 (1985)).
To support the conclusions of law, the judge also must make
specific findings of fact to enable this Court to determine whether
the trial court's conclusions of law are supported by the evidence.
Plott, 313 N.C. at 69, 326 S.E.2d at 868. Such findings are
necessary to an appellate court's determination of whether the
judge's order is sufficiently supported by competent evidence.
Id. (citing Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967)).
To disturb the trial judge's calculation, the appellant must
demonstrate that the ruling was manifestly unsupported by reason.
IV. Defendant's Means and Ability
 Defendant argues the trial court erred by concluding he
had the present means and ability to make the ordered child support
payment. Defendant cites no authority this conclusion was in
error. This assignment of error is deemed abandoned. See N.C.R.
App. P. 28(b)(6) (2006) (Assignments of error . . . in support of
which no . . . authority [is] cited, will be taken as abandoned.);
see Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C.
App. 59, 64, 401 S.E.2d 126, 129 (Because the appellee cites no
authority for this argument, it is deemed abandoned.), aff'd, 330
N.C. 439, 410 S.E.2d 392 (1991).
V. Imputing Income to Defendant
 Defendant contends the trial court erred in calculating
his monthly gross income and imputed income by concluding his
monthly gross income to be $3,200.00. Defendant argues that in
imputing income the trial court failed to make findings of fact he
is voluntarily underemployed or deliberately suppressed his income
in bad faith. We agree.
N.C. Gen. Stat. § 50-13.4(c) (2005) determines child support
payments and provides:
Payments ordered for the support of a minor
child shall be 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, . . . and other facts of the
Our Supreme Court has stated:
In determining the amount of . . . child
support to be awarded the trial judge must
follow the requirements of the applicable
statutes . . . . Ordinarily the husband's
ability to pay is determined by his income at
the time the award is made if the husband is
honestly engaged in a business to which he is
properly adapted and is in fact seeking to
operate his business profitably. Capacity to
earn, however, may be the basis of an award if
it is based upon a proper finding that the
husband is deliberately depressing his income
or indulging himself in excessive spending
because of a disregard of his marital
obligation to provide reasonable support for
his wife and children.
Beall v. Beall, 290 N.C. 669, 673-74, 228 S.E.2d 407, 410 (1976)
(internal quotations and citations omitted) (emphasis supplied).
Here, the trial court concluded as a matter of law defendant's
monthly gross income to be $3,200.00. This conclusion was based onthe trial court's finding of fact that the most believable
statement of income for the Defendant is the one submitted under
oath to the Bankruptcy Court, i.e., $38,400.00 per year, or
$3,200.00 per month. Defendant's statement of income in his
bankruptcy filing was made in July 2004, eighteen months prior to
13 December 2005 when the trial court's child support order was
entered. The trial court did not calculate defendant's ability to
pay . . . at the time the award [was] made. Id. In calculating
defendant's monthly gross income the trial court used his capacity
to earn as the basis for its calculation. Id.
Only when there are findings based on competent evidence to
support a conclusion that the supporting spouse or parent is
deliberately depressing his or her income or indulging in excessive
spending to avoid family responsibilities, can a party's capacity
to earn be considered. Atwell v. Atwell, 74 N.C. App. 231, 235,
328 S.E.2d 47, 50 (1985) (citing Beall, 290 N.C. 669, 228 S.E.2d
407; Whitley v. Whitley, 46 N.C. App. 810, 266 S.E.2d 23 (1980)).
The trial court's order is devoid of such findings. Without
these findings, the trial court erred by considering defendant's
capacity to earn, in computing his gross monthly income as
opposed to defendant's ability to pay . . . at the time the award
was made. Beall, 290 N.C. at 673-74, 228 S.E.2d at 410.
VI. Calculation of Plaintiff's Income
 Defendant argues the trial court erred in calculating
plaintiff's child support obligation by failing to includeplaintiff's gift income as attributable income. This failure was
also error and entitles defendant to reversal.
At the hearing to determine child support, plaintiff testified
her father gives Darrel Buck (Buck), a friend of plaintiff's,
money to pay $1,550.00 per month rent on the home in which
plaintiff and the children reside. Plaintiff testified it is her
understanding her father will continue to give the rent money to
Buck for the remainder of the lease.
Plaintiff also testified the vehicle, of which she has full
possession and use, is paid for by her father in the same manner.
Buck purchased the car when it was repossessed from plaintiff. The
payments of $340.00 a month are paid by plaintiff's father. Over
$10,000.00 remained owed on the vehicle. Plaintiff testified her
father will continue to make the payments on the vehicle until it
is paid in full.
The trial court found as fact plaintiff's father provides
money to a friend who in turn makes these payments in an effort to
hide assets and income from the Bankruptcy Court or this Court, or
both. The payment of the monthly vehicle obligation and rent
payment total $1,890.00.
The North Carolina Child Support Guidelines in effect at the
time the child support order at issue was entered defined 'income'
[as] income from any source, including but not limited to income
from . . . gifts . . . or maintenance received from persons other
than the parties to the instant action. 2006 Ann. R. N.C. 48. In
Spicer v. Spicer, we stated that income includes any 'maintenancereceived from persons other than the parties to the instant
action.' 168 N.C. App. 283, 288, 607 S.E.2d 678, 682 (2005)
(quoting 2005 Ann. R. N.C. 48).
'Maintenance' is defined as 'financial support given by one
person to another . . . .' Id. (quoting Black's Law Dictionary
973 (8th ed. 2004)). Plaintiff's vehicle and housing payments are
to be considered as income to her. The trial court erred by not
including these payments in calculating income in the child support
order. We reverse and remand this order for the trial court to
recalculate plaintiff's child support obligation, and take into
account plaintiff's gift income.
Without findings of fact to support its conclusions of law,
the trial court erred in calculating defendant's gross monthly
income and by failing to include plaintiff's gift income as income
for purposes of calculating child support. The order appealed from
is reversed. We remand this case for the trial court to
recalculate: (1) defendant's gross monthly income as of the date
of the award or to enter findings of fact sufficient to consider
defendant's capacity to earn and (2) plaintiff's gross monthly
income, taking into account plaintiff's gift income.
Reversed and Remanded.
Judges BRYANT and LEVINSON concur.
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