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