ORANGE COUNTY, ex rel.
ROBIN E. DASHMAN,
Plaintiff
v. Orange Count
y
No. 03 CVD 26
MICHAEL DUBEAU,
Defendant
The Brough Law Firm, by Robert E. Hornik, Jr., for plaintiff-
appellant.
No brief filed by defendant-appellee.
HUNTER, Judge.
Robin E. Dashman (plaintiff) appeals from her denial of a
motion for retroactive child support. We reverse the district
court's order and remand this matter for further findings as to
plaintiff's entitlement to retroactive child support.
Plaintiff and Michael Dubeau (defendant) were married on 17
March 1981, but subsequently separated and were divorced on 11
September 2002. It appears that several children were born during
the marriage, but for purposes of the instant matter, Jamie L.Dubeau (minor child), born on 14 June 1989, is the only
unemancipated child requiring support.
At the time of separation and divorce, the parties had an
informal agreement under which defendant agreed to pay child
support of the minor children of their marriage. They never had a
formal, written agreement as to child support. In January 2003,
Orange County Department of Social Services, on behalf of
plaintiff, filed a complaint seeking child support for the minor
child. By order entered 17 July 2003, the district court ordered
defendant to pay plaintiff $504.00 per month in child support. In
that order, the court specifically provided that [a]ll matter[s]
regarding retroactive support for Jamie Dubeau, and either of the
other children of the parties are reserved for hearing at a later
date after filing and notice of the proper motions.
In July 2004, plaintiff filed a motion for modification of
child support, seeking retroactive support for three years prior to
the motion. This matter was heard by Judge Alonzo B. Coleman, Jr.
on 17 August 2004 in Orange County District Court. The evidence
tended to show that defendant was employed by the North Carolina
Department of Transportation, and had an average income of
$39,000.00 per year. Defendant had not complied with the terms of
the parties' informal support agreement. In addition, defendant
failed to meet his support obligations under the trial court's 17
July 2003 child support order, and was in arrears on that
obligation. Plaintiff was not employed. Plaintiff presentedaffidavits in support of her motion for retroactive support,
showing $19,800.00 in past expenditures for the minor child.
After hearing the evidence, including review of the
affidavits regarding income and expense[s] which were entered into
the record without objection, the court entered an order denying
plaintiff's motion for retroactive child support, ordering only
that defendant continue to pay . . . $504.00 per month in current
child support, plus $21.00 per month to the vested arrears, as of
8/17/04, of $3360.00, through NC Child Support. Plaintiff
appeals.
On appeal, plaintiff argues that the trial court abused its
discretion in denying her motion to recover retroactive child
support. A party requesting retroactive child support may seek an
order for reimbursement from the non-supporting parent for those
reasonably necessary expenditures made in the past for support of
a child. Savani v. Savani, 102 N.C. App. 496, 501, 403 S.E.2d 900,
903 (1991). The party seeking such support bears the burden of the
expenditures made in the past on behalf of the child, and proving
the expenditures were reasonably necessary. Id. In determining
the amount of retroactive child support to be awarded, the court
must consider the amount of reasonably necessary expenditures made
on behalf of the child . . . and the defendant's ability to pay
during the period in the past for which retroactive support is
sought. State ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 648,
507 S.E.2d 591, 595 (1998). In Fisher, this Court explained:
Once proof of reasonably necessary actual
expenditures under N.C. Gen. Stat. §50-13.4(c) is made, the trial court must
reimburse plaintiff for her past expenditures:
(1) to the extent she paid [the] father's
share of such expenditures, and (2) to the
extent the expenditures occurred three years
or less before . . . the date she filed her
claim for child support. In making its
reimbursement award for retroactive support, a
trial court must make specific factual
findings.
Id. (citations omitted).
The trial court noted that the parties submitted affidavits
regarding income and expenses and that those affidavits were
entered into the record without objection[.] Particularly,
plaintiff presented an affidavit of the expenses she incurred in
the three years prior to the entry of the district court's 17 July
2003 support order. We note, however, that the affidavit of
plaintiff's expenditures is not included in the record, nor is the
information contained therein incorporated by reference into the
court's order. Based upon the subject evidence, the trial court
made the following pertinent findings:
7. Defendant is currently under order
to pay child support in the amount of $525.00
per month, $21.00 of which is applied to his
vested arrears of $3360.00.
8. That the Plaintiff has stated a
claim for retroactive support for three years
prior to the entry of the current court order.
9. Plaintiff has provided proper
affidavits for the court to consider this
claim fully in accord with Savani v. Savani.
The court has fully reviewed these affidavits,
which were entered into the record without
objection. These affidavits state a claim for
$19,800.00 in retroactive support.
10. That Defendant is employed by NC DOT
with an income of $39,000.00 per year.
11. That the Defendant paid support
during the years the Plaintiff is stating a
claim for retroactive support, however
Defendant did not pay support in accord with
application of the guidelines at that time,
nor was his support paid in an amount agreed
upon by the parties. In addition, the
Defendant did not fully cooperate with
Plaintiff during those years to establish his
income.
12. That at the time of application of
the guidelines as well as today, the Plaintiff
is not employed such that minimum wage is
imputed to her.
13. That the Plaintiff's affidavits
illustrate the generous standard of living
enjoyed in her household during the years for
which the retroactive support claim is made.
14. That the equities in this matter do
not support the award of an additional
$19,800.00 in retroactive support.
We conclude that the court's findings are inadequate to support its
decision to deny plaintiff's motion for retroactive support. Here,
there is only cursory mention of the total amount of plaintiff's
expenditures without any specific mention of the nature of those
expenditures; there is no specific mention of the reasonableness of
those expenditures, only of a generous standard of living enjoyed
by plaintiff's household during the subject time period; and there
is absolutely no mention of defendant's ability to pay during the
three-year period at issue, including the extent to which
plaintiff paid defendant's share[.] See Fisher, 131 N.C. App. at
649, 507 S.E.2d at 596; McCullough v. Johnson, 118 N.C. App. 171,
172, 454 S.E.2d 697, 698 (1995) ([f]indings in support of an award
of retroactive child support must include the actual expenditures
made on behalf of the child); Lawrence v. Tise, 107 N.C. App. 140,152, 419 S.E.2d 176, 184 (1992) (citations omitted) ([i]n
determining the non-custodial parent's share of the custodial
parent's reasonable actual expenditures in a retroactive support
action, the trial court should consider the relative abilities of
the parents to pay support (considering the estates, earnings, and
the reasonable expenses of the parents) and any 'indirect support'
made by either parent for the child during the period in
question).
In light of the foregoing, we reverse the district court's
order and remand this matter for further findings as to plaintiff's
entitlement to retroactive child support.
Reversed and remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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