An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1453

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

SUZANNE MACEACHERN,
        Plaintiff,

v .                         Wake County
                            No. 01 CVD 14668
HUGH MACEACHERN,
        Defendant.

    Appeal by defendant from order entered 10 May 2004 by Judge Anne B. Salisbury in Wake County District Court. Heard in the Court of Appeals 11 May 2005.

    Suzanne MacEachern, pro se, plaintiff-appellee.

    Lynne M. Kay for defendant-appellant.

    GEER, Judge.

    Defendant Hugh MacEachern appeals from the trial court's order awarding custody, child support, alimony, and attorney's fees to plaintiff Suzanne MacEachern. On appeal, defendant does not challenge the amount of alimony awarded or the court's conclusions of law and decrees regarding child custody. Upon review of defendant's arguments regarding the child support provisions, we hold that the trial court failed to make adequate findings of fact regarding defendant's expenses and the proper worksheet to be used in calculating the amount of child support due under the North Carolina Child Support Guidelines ("the Guidelines"). We, therefore, remand for further findings of fact as to child support. Although we hold that the trial court's findings of fact regardinga letter prepared by defendant are supported by competent evidence, we further hold that the trial court erred to the extent that it purported to bar defendant from showing his daughter the letter once she ceased to be a minor. We find the remainder of defendant's assignments of error to be without merit.

Facts and Procedural History

    Plaintiff and defendant were married on 27 April 1979. They separated on 14 February 2002 and eventually divorced. Three children were born during the marriage, including two sons and a daughter. At the time of the hearing below, only the daughter was still under the age of 18.
    During the parties' marriage, plaintiff primarily stayed at home with the children while defendant worked full time as an executive in the cable industry. In July 2000, after working in North Carolina, Ohio, and California, defendant entered into a three-year contract to work with a subsidiary of BTI in North Carolina. Within a short time after moving back to North Carolina, defendant's position was eliminated although he continued to receive his $175,000.00 salary through the ending date of the contract in July 2003. During the three years of the contract, defendant did not obtain a new position, but rather _ as the trial court found _ "used the time to 'network', maintain his home and be involved in the children's activities."
    Plaintiff began working in August 2001 as a secretary at a middle school. Plaintiff's gross monthly salary was $1,175.27 per month for 10 months of the year. Plaintiff suffered a stroke in1999 from which she has recovered physically. She, however, has lingering problems processing information, making very complex tasks difficult. She is able to work in her present job, but plaintiff's expert witness, Dr. Roger B. Moore, testified at the hearing that plaintiff would be unable to perform any more complex work than she is currently performing.
    On 29 November 2001, plaintiff filed a complaint for post- separation support, permanent alimony, attorney's fees, and child custody and support. On 6 June 2002, the court entered an order that required defendant to pay plaintiff $1,657.00 per month in post-separation support and $2,643.00 per month in child support. The court later entered a temporary child custody order on 29 January 2003 that awarded temporary primary custody to plaintiff.
    After a three-day hearing commencing 2 June 2003, the trial court entered an Order of Permanent Custody, Child Support and Alimony on 27 June 2003. This order (1) awarded joint custody of the daughter to the parties, but primary custody to plaintiff; (2) established a visitation schedule for defendant; (3) calculated the child support to be paid by defendant to plaintiff; (4) awarded plaintiff permanent alimony; and (5) determined that plaintiff was entitled to reasonable attorney's fees.
    On 7 July 2003, defendant filed a motion for an amendment of the order and a motion for a new trial. The court entered an Amended Order of Permanent Child Custody, Child Support, and Alimony on 29 September 2003. On 9 October 2003, defendant filed a second motion for amendment of the order and for a new trial. This motion was considered by the court at a hearing on 5 February 2004. In its order entered 10 May 2004, the court found that "[t]he Amended Order does contain some mathematical errors which the Court should amend for accuracy. . . . [and] some Findings of Fact which would benefit from clarification from the Court," but determined that defendant had failed to establish grounds for a new trial. On the same date, the trial court entered a Second Amended Order of Permanent Child Custody, Child Support, and Alimony. Defendant subsequently filed a timely notice of appeal.
Child Support

    On appeal, defendant challenges the adequacy of the trial court's findings of fact related to the award of child support. The trial court concluded that it was appropriate to deviate from the Guidelines based on its findings that the amount required by the Guidelines was not sufficient to meet the reasonable needs of the minor child. Defendant contends that the trial court did not make proper findings regarding (1) the worksheet to be used in calculating the amount due under the Guidelines, (2) the reasonable expenses of plaintiff and the minor child, (3) the reasonable expenses of defendant, and (4) the parties' accustomed standard of living.
    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 (1998). 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).
    With respect to the first step, the parties disagree regarding which worksheet the trial court should have used in determining the presumptive child support amount under the Guidelines. Worksheet A of the Guidelines is used when one parent has "primary physical custody" of a child, which is defined as being when "the child lives with that parent (or custodian) for at least 242 nights during the year." N.C. Child Support Guidelines, 2006 Ann. R. N.C. 51. Additionally, "[p]rimary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody of a child." Id. Worksheet B is used, however, when the parents "share custody" of the children; shared custody is defined as when "the child lives with each parent for at least 123nights during the year and each parent assumes financial responsibility for the child's expenses during the time the child lives with that parent." Id.
    Defendant points to evidence suggesting that his daughter stayed with him for 133 nights in the year and that the court should, therefore, have used Worksheet B when calculating child support. Plaintiff argues in response that the evidence establishes that the actual number of overnights was fewer than 120 and that Worksheet A was the appropriate worksheet.
    Although the parties seem to assume that the trial court used Worksheet A, the trial court's order does not specify which worksheet it used and the record contains no worksheet. Further, the order does not resolve the factual dispute between the parties regarding the number of nights that the minor child stayed with defendant. Without sufficient findings, an appellate court has no means of determining whether an order is adequately supported by competent evidence. Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). "It 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. We must, therefore, remand for a determination by the trial court of the number of overnight stays by the minor child with defendant and a determination of which worksheet should be used to calculate the presumptive amount of child support due under the Guidelines.    With respect to the second step of the analysis, relating to the minor child's reasonable expenses, defendant argues that the trial court improperly divided plaintiff's fixed expenses in two with half attributed to plaintiff and the other half attributed to the minor daughter. Defendant argues that the expenses should have been divided among plaintiff, the daughter, and the parties' middle son who was over 18, but living at plaintiff's residence at the time.
    When making findings regarding the needs and expenses of the parties, the court should consider (1) the parent's and child's individual needs and (2) the fixed expenses of the entire household, which should be divided among all the parties living in the residence. Atwell v. Atwell, 74 N.C. App. 231, 236, 328 S.E.2d 47, 50 (1985). In Atwell, this Court suggested that expenses should be divided between the mother, the minor child, and the mother's other two daughters from a previous marriage who were not subjects of the child support order. Id. at 236, 328 S.E.2d at 50.
    Defendant points to the 6 June 2002 order for post-separation support and child support, in which the trial court divided the fixed expenses by allocating one half to plaintiff and allocating one half to two children, the middle son and the minor daughter. In the order at issue on this appeal, the trial court divided the expenses equally between plaintiff and the minor daughter, even though there was evidence that the middle son (who was over 18) was still living with his mother as of the time of the hearing in June 2003. The trial court's May 2004 order, however, also found that"Steven is due to enroll at North Carolina State University in the fall of 2003" and it decreased the expenses of defendant for household food and supplies because the two teenage sons would, "for the most part, be off at college." The trial court's findings indicating that the middle son would not be living with either parent beginning in the fall of 2003 support its decision to divide the fixed expenses equally between plaintiff and the minor child. See Smith v. Smith, 89 N.C. App. 232, 237, 365 S.E.2d 688, 692 (1988) (upholding the trial court's decision to allocate one-third of the fixed expenses to the custodial parent and two-thirds to the parties' two children).
    Defendant also assigns error to the trial court's finding regarding his reasonable monthly expenses. He argues that the trial court erred in finding his total reasonable monthly expenses to be $4,930.00 rather than $5,087.00. Defendant explains that the trial court erroneously omitted the $157.00 that defendant paid each month for health insurance. We agree with defendant that this amount should have been included in calculating defendant's reasonable monthly expenses.
    Finally, defendant assigns error to the trial court's finding of fact that "[t]he family did, spent and acquired virtually anything they wanted." The full finding of fact states:
During the marriage, the parties established a very comfortable standard of living which included a 3800 square foot, four bedroom three and one-half bath home in Cary valued at approximately $550,000. They took a trip to Hawaii in 1999; they had no debt other than mortgage; investments such as stock accounts; and regular outings such as eating out, iceand roller skating and movies. The family did, spent and acquired virtually anything they wanted.

This finding of fact meets the requirement under N.C. Gen. Stat. § 50-13.4(c1) (2003) that the trial court make findings of fact regarding, among other factors, the "accustomed standard of living of the child and the parties." See Gowing v. Gowing, 111 N.C. App. 613, 618, 432 S.E.2d 911, 914 (1993) (holding that the factors in N.C. Gen. Stat. § 50-13.4(c1) "should be included in the findings if the trial court is requested to deviate from the guidelines"). Based upon our review of the record, we hold that this finding of fact, when read in its entirety, is supported by competent evidence.
    Accordingly, with respect to child support, we remand for entry of further findings of fact sufficient to determine which worksheet of the Guidelines should be used in calculating the presumptive amount of child support due under the Guidelines. Further, in making the Sain determinations, the trial court should include in defendant's reasonable monthly expenses the amount paid for health insurance.

Custody

    Defendant has not assigned error to the trial court's conclusions of law regarding custody or the decretal portions of the order relating to custody with the exception of the portion of the order prohibiting defendant from showing his daughter a letterhe drafted.   (See footnote 1)  He assigns error, however, to various findings of fact that can only relate to the custody rulings. Because defendant does not seek reversal of any aspect of the trial court's ruling regarding custody _ except for the letter _ the validity of those findings of fact is immaterial to the resolution of this appeal. See Skinner v. N.C. Dep't of Corr., 154 N.C. App. 270, 278, 572 S.E.2d 184, 190 (2002) (overruling an assignment of error challenging the sufficiency of the evidence to support certain findings of fact because the findings were not material to the legal issues on appeal).
    With respect to the letter drafted by defendant, the trial court found that several statements in the letter "were particularly disturbing" and that the letter constituted an inappropriate communication with the children. The court found further:
Defendant's explanations for these statements . . . do not fit into the context of the letter. It is not necessary that such information be shared with the children by either party (although there is no evidence that this was done by Plaintiff) and it is not in the children's best interest. Even more problematic is that Defendant shared this letter with his two sons prior to the Court's Order and, after the Court strictly forbade the parties from discussing the litigation with the children in its Temporary Order, stated that he still intends to share the letter with [his daughter] when he deems her old enough. He stated that he is very proud of his letters to his children and that hereserved the right to raise his children as he saw fit. . . . Defendant's behavior in this regard shows an unwillingness to do things any other way but his own.

    Defendant first contends that the trial court's findings of fact regarding this letter are not supported by competent evidence. We disagree. Our review of the record reveals that it fully supports the trial court's findings of fact. The trial court could choose to rely upon the plain language of the letter rather than accept defendant's testimony regarding his intent. It was for the trial court to judge defendant's credibility.
    Although the trial court did not abuse its discretion in prohibiting defendant from showing his daughter this letter while she is a minor, the trial court erred to the extent that the prohibition is open-ended. Once the child passes her eighteenth birthday, then the custody order is no longer in effect and the provision regarding the letter will expire. Beck v. Beck, 64 N.C. App. 89, 93, 306 S.E.2d 580, 582 (1983) ("Under North Carolina case law, matters of custody . . . are pending until the death of one of the parties or the child reaches the age of majority."); Shutt v. Butner, 62 N.C. App. 701, 703, 303 S.E.2d 399, 400 ("[T]he custody and support order appealed from by the defendant can have no future effect, since the minor child's eighteenth birthday has now passed . . . ."), disc. review denied, 309 N.C. 462, 307 S.E.2d 367 (1983). While we sincerely sympathize with the trial court's desire to protect the daughter from exposure to this letter, any such prohibition can only last while the order is properly in effect.

Alimony

    While defendant has not challenged the amount of alimony awarded, he does contend that the trial court erred in ordering that defendant's alimony payments should discontinue if plaintiff engages in "cohabitation with a member of the opposite sex," but failing to include a provision regarding cohabitation in a homosexual relationship. Plaintiff has stated in her pro se brief:
        I am not currently a homosexual and have not been one in the past. I am not planning on becoming a homosexual any time in the near future. I believe the intent of the court's order is clear regarding cohabitation and the continuation of alimony and that this argument is, at the very least, frivolous.

We agree with plaintiff.
    The law in North Carolina is that "[i]f a dependent spouse who is receiving postseparation support or alimony from a supporting spouse . . . remarries or engages in cohabitation," such an award shall terminate. Additionally, "cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship." N.C. Gen. Stat. § 50-16.9(b) (2003). Thus, by statute, an alimony order will terminate upon either homosexual or heterosexual cohabitation. The omission of this language from the order is immaterial in this case, in which defendant presented no evidence suggesting that potential homosexual cohabitation was an issue.
    Defendant also assigns error to the trial court's award of attorney's fees to plaintiff, arguing that the trial court failedto make adequate findings of fact to support its award. "[T]he purpose of the allowance of counsel fees is to enable the dependent spouse, as litigant, to meet the supporting spouse, as litigant, on substantially even terms by making it possible for the dependent spouse to employ adequate counsel." Williams v. Williams, 299 N.C. 174, 190, 261 S.E.2d 849, 860 (1980).
    As this Court explained in Larkin v. Larkin, 165 N.C. App. 390, 398, 598 S.E.2d 651, 656 (2004):
            A spouse is entitled to attorney's fees if that spouse is (1) the dependent spouse, (2) entitled to the underlying relief demanded (e.g., alimony and/or child support), and (3) without sufficient means to defray the costs of litigation. Before granting an award of attorneys' fees, the trial court is required, as a matter of law, to determine whether the spouse seeking the award is the dependent spouse without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses.

(Internal citation and quotation marks omitted), aff'd per curiam as modified, 359 N.C. 316, 608 S.E.2d 754 (2005). Whether the statutory requirements "have been met is a question of law that is reviewable on appeal, and if counsel fees are properly awarded, the amount of the award rests within the sound discretion of the trial judge and is reviewable on appeal only for an abuse of discretion." Clark v. Clark, 301 N.C. 123, 136, 271 S.E.2d 58, 67 (1980). When determining whether a party can "defray" the costs of litigation, "a court should generally focus on the disposable income and estate of just that spouse, although a comparison of the two spouses' estates may sometimes be appropriate." Barrett v. Barrett, 140 N.C. App. 369, 374, 536 S.E.2d 642, 646 (2000).     We hold that the trial court made the findings necessary to support its award of attorney's fees. It is undisputed that plaintiff is the dependent spouse and that she is entitled to alimony. With respect to her ability to defray the costs of litigation, the trial court specifically found that "[s]he has insufficient means to defray the expenses of this suit and is entitled to an award of her reasonable attorney's fees." In addition, the court also detailed plaintiff's recent work and physical history, noting that, due to her stroke, she would be unable to earn more than her limited salary of $1,175.27 per month as a secretary at a local school. The court found that in the absence of alimony, "[t]he resources of Plaintiff are not adequate to meet her reasonable needs." By contrast, the court found that defendant received a one-time bonus of $50,000.00 in 2001 with a total 2001 income of $223,113.00; his monthly gross income was $14,583.00; he received a car allowance of $700.00 per month; and he had recently leased a 2003 Jaguar automobile at a cost of $496.00 per month.   (See footnote 2)  These findings of fact are sufficient to support the trial court's determination that plaintiff lacked sufficient means to defray the expenses of this litigation and to meet defendant on substantially even terms as a litigant. This assignment of error is overruled.

    Affirmed in part, reversed in part, and remanded.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).


Footnote: 1
    Defendant also assigned error to a portion of the order that required him to cooperate with a therapist working with his minor daughter. Since he did not bring forth this assignment of error in his brief, we deem it abandoned. N.C.R. App. P. 28(b)(6).
Footnote: 2
    The trial court did note that defendant's BTI contract would be ending, but defendant was still drawing his salary through the dates of the hearing.

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