An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1722


Filed: 17 January 2006


         v.                                Orange Count y
                                        No. 03 CVD 26 MICHAEL DUBEAU,

    Appeal by plaintiff from an order entered 8 September 2004 by Judge Alonzo B. Coleman, Jr. in Orange County District Court. Heard in the Court of Appeals 9 January 2006.

    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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