Converted WP file 050805-1

MILTON GORDON WIDENHOUSE, JR.,
Plaintiff,

    v.                            Wake County
                                No. 96 CVD 006933
LAURA ELLEN CRUMPLER,
    Defendant.

    Appeal by Defendant from an order entered 31 March 2005, nunc pro tunc 1 March 2004, by Judge Shelley H. Desvousges in Wake County District Court. Heard in the Court of Appeals 20 February 2006.
    Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene, for Plaintiff-Appellee.

    Laura E. Crumpler, Pro se, Defendant-Appellant.

    STEPHENS, Judge.
Laura E. Crumpler (“Defendant”) appeals from an order of the trial court modifying previous orders regarding child support, child custody and visitation. For the reasons stated herein, we reverse and remand the trial court's determination.
    Plaintiff and Defendant were married on 17 September 1983. They were divorced on 6 December 1996. There were two children born of the marriage: Lindsay Caroline, born 22 December 1987, and Sherburne Amelia, born 26 October 1989.
    On 12 July 2000, Plaintiff and Defendant entered into aconsent order pursuant to which the parties agreed to share custody of their daughters with visitation split between the parties. The order did not provide for child support, but instead assigned responsibility to each parent to pay for all reasonable and ordinary expenses of the girls, including extracurricular activities, while they were in each party's respective custody. In addition, the order provided for the parties to share equally the costs of health insurance premiums for the children as well as unreimbursed major medical expenses and deductibles. Extraordinary expenses for extracurricular activities could be shared only by further express agreement of the parties.
    On 20 May 2003, Defendant moved to modify the child support and custody orders. In support of her motion, she alleged changed circumstances, specifically Lindsay's desire to spend more time in Raleigh where Defendant lives, and an increase in the children's financial needs due to their ages and school and social activities. She also filed a motion to show cause based on allegations that Plaintiff had failed to contribute his share of educational and living expenses under the consent order. In turn, Plaintiff filed a motion to show cause based on Defendant's refusal to force Lindsay to spend the summer of 2003 with Plaintiff in Chapel Hill as contemplated by the consent order.
    On 29 August 2003, the trial court heard evidence onDefendant's show cause motion and denied same on grounds that the consent order was not sufficiently clear regarding the parties' respective responsibilities for the children's educational and living expenses. The court held a second hearing on 30 September 2003 during which Judge Desvousges met with Lindsay in chambers. Subsequently, the judge denied Plaintiff's motion to hold Defendant in contempt for not forcing Lindsay to live with Plaintiff during the summer of 2003. She also found that there had been a substantial change in circumstances with regard to Lindsay. Based on the consent of the parties, the trial judge ordered that Lindsay's visitation schedule with Plaintiff be resumed for one weekend per month, but declined to rule at that time on Defendant's motion to modify custody and child support (which the trial judge incorrectly designated as a motion to modify custody and visitation).
    Following the 30 September 2003 hearing and upon Judge Desvousges's encouragement, the parties attempted to reach agreement on the issues of custody and support, and to that end, exchanged proposed new consent orders with Worksheet B forms and calculations attached. Based on her calculations under Schedule B of the North Carolina Child Support Guidelines, Defendant arrived at a monthly support obligation for Plaintiff of $833.00. Plaintiff's proposed order included a stipulation “pursuant toWorksheet B Child Support Obligation for Joint or Shared Physical Custody” that Plaintiff would pay monthly child support of $723.00. Both parties' proposals maintained the responsibility of each to pay reasonable and ordinary expenses of the children while they were in each parent's custody, including extracurricular activities, and continued their prior agreement to share costs associated with the girls' medical needs. They were unable to agree on the payment or sharing of costs incurred for extraordinary extracurricular activities.
    As a consequence of the parties' failure to reach a consent agreement with respect to all issues raised by Defendant's motion to modify, the trial court conducted a third hearing on 30 January 2004. At that time, the parties submitted their proposed orders with attached Worksheet B calculations, and the trial judge stated that, in deciding the issues raised by the motion, she would be using “Schedule B under the North Carolina Child Support Guidelines.” She ordered each party to submit new financial affidavits by 1 March 2004 and took the matter under advisement. Both parties timely complied with her request for new financial affidavits.
    On 31 March 2005, nunc pro tunc 1 March 2004, the trial judge entered her order on Defendant's motion to modify child support and custody. Among others, she made the following pertinent findingsof fact:
    15. At the hearing of September 30, 2003, the Court found, and the parties agree, that there has been a substantial change of circumstance as it relates to the minor child, Lindsay, as follows:

a. Lindsay . . . desires to live in Raleigh with the Defendant and works part-time to earn money to help with car insurance and other expenses that arise as a result of being a high school student. . . .

b. Lindsay is engaged in many extracurricular activities, including competitive dancing, and practices extensively and travels to many of the competitions [which] sometimes conflict with the Plaintiff's weekend visitation time with her during the school year.

c. . . . Lindsay desires more independence and stability in her life[.]

16. The minor child, Sherbourne [sic], is not having difficulties with the visitation and custody schedule currently in place[.]

. . . .

19. At issue is the visitation schedule for Lindsay, and issues of payment of additional expenses for both minor children as it relates to medical expenses that are not covered under the Defendant's medical insurance for the children, the increase in expenses for extracurricular activities and school events as both children are teenagers and in high school, and any child support for which one party might be responsible.

20. At the January 30, 2004 hearing, the Defendant presented sufficient credible evidence of her increase in expenses for theminor children during the time they reside with her[.]

. . . .

28. There is evidence that the Plaintiff assists the Defendant with some of these expenses; however, because the minor children reside with the Defendant most of the school year and attend school in Raleigh, the Defendant bears a disproportionate burden of the majority of the minor children's school and school related expenses.

. . . .

32. There have been substantial changes in circumstances such that the July 12, 2000 Order should be modified as it relates to child support and visitation.

33. Said changes in circumstances include the ages of the children, the increase in school expenditures and other related expenses, the increased amount of time that the minor children spend with the Defendant during the school year and the summer months, and the changes listed in Finding of Fact Number 15, above.

. . . .

37. The Plaintiff's [living] expenses, as evidenced by his Financial Affidavit . . . are reasonable.

. . . .

40. The Defendant's expenses for herself and the minor children, as evidenced by her Financial Affidavit . . . are reasonable[.]

    41. Both the Plaintiff and the Defendant have the relative ability to provide child support to the minor children.
    . . . .

    43. Pursuant to the North Carolina Child Support Guidelines, October 2003, the Court
. . . finds by the greater weight of the evidence that the presumptive guideline amounts for child support for each minor child in this case is [sic] unjust or inappropriate and would not meet the reasonable needs of the minor children considering the relative ability of each parent to provide support.

44. In deviating from the presumptive guideline amount of child support, the Court bases said deviation on the following: until 2003, the spirit and intent of the Consent Orders entered into by the parties was to share equally in custody and expenses for the minor children, although the Consent Orders did not contemplate what to do with additional expenses as the children got older; the parties have similar educational and employment backgrounds, and by virtue of this, although the Plaintiff earns approximately $10,000.00 per year more than the Defendant, there is no great discrepancy in the differences in their income or earnings capacity; it would be burdensome and inaccurate for the Court to calculate child support according to the presumptive guidelines on a Worksheet A for Lindsay, Worksheet B for Sherbourne [sic], a Worksheet for both children for any retroactive child support for which either parent might be responsible, and possibly a Worksheet C for any period of time that the Plaintiff and the Defendant split custody for Sherbourne [sic], . . . and the child support issue in this matter focuses on the increase in day-to-day expenses for the minor children as teenagers, extracurricular expenses, some incidental expenses and medical co-pays for the minor children.

(Emphasis added).
    On these findings and related conclusions of law, the court ruled that (1) each party is responsible for providing for the minor child's “basic needs” while in his or her custody, including food, clothing, transportation, spending money for “regular” extracurricular activities, church activities, and “regular” school events; (2) the parties shall share equally all educational expenses; (3) the parties shall share equally the costs of one trip for each minor child per calendar year outside the state for four days or longer; (4) the parties shall share equally costs associated with the children's dance and musical activities; and (5) Plaintiff remains responsible for one-half of the premiums for group health coverage for the children and one-half of certain unreimbursed or uncovered medical expenses. The trial court's order continued the visitation schedule set for Sherburne in the parties' 12 July 2000 consent agreement and established a new visitation schedule for Lindsay. The court did not calculate the presumptive amount of child support per the Guidelines, and no provision for Plaintiff to make any monthly child support payments was entered. From this order, Defendant appeals.   (See footnote 1)
    By her first assignment of error, Defendant argues that thetrial court erred in denying child support. She bases her argument, in part, on the trial court's failure to make sufficient findings to support deviation from the presumptive Child Support Guidelines. She also argues that the trial court's determination that monthly child support would not meet the needs of the children flies in the face of the uncontradicted evidence that Lindsay's time with Defendant had increased, that the children's living expenses had increased, and that Defendant bore a disproportionate burden of meeting the children's school and school-related expenses. We agree.
    The father and mother of a minor child are primarily responsible for the child's support. Plott v. Plott, 313 N.C. 63, 326 S.E.2d 863 (1985). This duty is equal; however, the amount of each parent's obligation varies in accordance with their respective financial resources. Id. The trial court has considerable discretion in determining the amount of support a parent shall pay. Id. Nonetheless, the amount of child support is presumptively determined by the application of the North Carolina Child Support Guidelines. Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774, aff'd, 347 N.C. 570, 494 S.E.2d 763 (1998). If the trial court chooses to deviate from the Child Support Guidelines, it must find that the guidelines (1) would not meet or would exceed the reasonable needs of the child, or (2) would be otherwise unjust orinappropriate. Id. The rationale for such findings must appear in the trial court's order. Id.
    In the instant case, the trial court found “by the greater weight of the evidence that the presumptive guideline amounts for child support . . . is [sic] unjust or inappropriate and would not meet the reasonable needs of the minor children considering the relative ability of each parent to provide support.” The court thus chose to deviate from the guidelines. While the 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), the law nevertheless is settled that, to support deviation, the trial court must follow a four-step process.
First, the trial court must determine the presumptive child support amount under the Guidelines. N.C.G.S. 50-13.4(c) (2003). 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.” Id. 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.” Id.; Child Support Guidelines, 1999 Ann. R. N.C. 32 (“The Court may deviate from the Guidelines in cases where application would be inequitable to one of the parties or to the child(ren).”); Brooker v. Brooker, 133 N.C.App. 285, 290-91,515 S.E.2d 234, 238 (1999). 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.” N.C.G.S. 50-13.4(c); Child Support Guidelines, 1999 Ann. R. N.C. 32.

Sain v. Sain, 134 N.C. App. 460, 465-66, 517 S.E.2d 921, 926 (1999) (emphasis added); see also Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005).
As in Sain, in this case the trial court failed to determine the presumptive amount of child support under the Guidelines. It appears that the court's failure in this respect was based primarily on a misapprehension of how to calculate the presumptive amount. We agree with Defendant that, under the undisputed facts presented for the court's consideration, Worksheet B was the appropriate method to use to calculate the presumptive amount. The Guidelines are clear on this issue: “Use Worksheet B . . . when one parent has primary physical custody of one or more of the children and the parents share custody of another child.” N.C. Admin. Office of the Courts, N.C. Child Support Guidelines, AOC-A-162 at 5 (Rev. 10/02) . Based on the trial court's own determination of the changed circumstances regarding Lindsay's custody andvisitation schedule, as well as the determination that Sherburne's custody and visitation schedule remained the same as in the 2000 consent order, it is plain that one parent (Defendant) had primary physical custody of one of the minor children (Lindsay), and that the parents shared custody of the other child (Sherburne).
Plaintiff did not contest the use of Worksheet B to determine the presumptive child support amount during the hearings in the trial court. Moreover, he submitted a completed Worksheet B with his proposed order on Defendant's motion to modify child support. In his proposal, Plaintiff included a stipulation “[t]hat child support shall be apportioned pursuant to Worksheet B Child Support Obligation for Joint or Shared Physical Custody[.]” On appeal, however, Plaintiff argues that this Court should not “exalt form over substance” with respect to the trial court's findings of fact, but instead should uphold the order below so long as the record establishes that the trial court considered the appropriate factors before deviating from the Guidelines. In support of his position, Plaintiff cites this Court's decision in Gaston County ex rel. Miller v. Miller, 168 N.C. App. 577, 608 S.E.2d 101 (2005). We note, however, that the trial judge in Miller, unlike the trial court in this case, complied completely with the four-step process mandated by the Guidelines to justify deviation, including determination of the presumptive child support amount. In this case, without ever calculating the presumptive child support amount under the Guidelines, the trial court first found that “the presumptive guideline amounts for child support . . . is [sic] unjust or inappropriate and would not meet the reasonable needs of the minor children[.]” Immediately following that determination, however, the trial court found that “it would be burdensome and inaccurate for the Court to calculate child support according to the presumptive guidelines[.]” These findings are internally inconsistent, in addition to being inadequate to permit effective appellate review of whether deviation from the presumptive amount was justified. Moreover, “[i]t 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[.]” Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (emphasis in original). In cases involving the appropriate amount of child support, this obligation includes determining the presumptive amount of support contemplated by the Child Support Guidelines before deviating from that amount. As the Coble Court pointed out in justifying its remand for additional findings in a child support order:
Our decision . . . is not the result of an obeisance to mere technicality. Effective appellate review of an order entered by atrial court sitting without a jury is largely dependent upon the specificity by which the order's rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence; each link in the chain or reasoning must appear in the order itself. Where there is a gap, it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.

Coble, 300 N.C. at 714, 268 S.E.2d at 190.
In urging us not to require complete compliance with the settled law on this issue, Plaintiff argues further that since the trial court in effect substituted the payment of certain expenses for a monthly support payment as a “fair solution” to the issues underlying Defendant's motion to modify child support, “a finding of the precise amount of presumptive support under the Guidelines was unnecessary.” We disagree. Without a determination of the presumptive amount and a comparison of that amount to the expenses the court ordered Plaintiff to pay instead, we are unable to effectively review “the basis for the amount awarded as a result of the deviation.” See Spicer, 168 N.C. App. at 293, 607 S.E.2d at 685.
    In addition, we agree with Defendant that the trial court's order disregarded the day-to-day expenses contemplated by child support, despite findings from the undisputed evidence that Lindsayhad resided primarily with Defendant since at least the summer of 2003; that both children reside with Defendant most of the school year; and that the expenses Defendant paid for the children had increased not only for school, school-related and medical costs, but also for the normal increases that occur as children get older and become more involved in various required and extracurricular activities. Although the trial court's order addressed and made provisions for health and education costs, as well as certain extraordinary expenses (dance and musical competitions and costs, and school/church/dance/educational-related trips)   (See footnote 2) , in failing to award monthly child support, the trial court left Defendant with a “disproportionate burden of the majority” of the children's maintenance expenses.
    Accordingly, we reverse the trial court's order denying child support and remand this matter for the court to make the required findings on Defendant's motion to modify child support. These findings must include the presumptive child support amount usingWorksheet B. If the court elects to deviate from awarding that amount, the court must make specific findings as to why the presumptive amount would be inadequate or excessive, or otherwise unjust or inappropriate, to meet the reasonable needs of the minor children. To the extent necessary, we authorize the court to receive additional evidence to determine these issues under the Guidelines and in accordance with this opinion.
    We next consider Defendant's second assignment of error, by which she argues that the trial court erred in not awarding child support retroactive to the filing of her motion to modify on 20 May 2003. The trial court's order, instead, was effective as of the last hearing held on 30 January 2004. In response, Plaintiff correctly argues that, under settled prior decisions of this Court, a trial court has the discretion to modify a child support order as of the date the motion to modify is filed, but is not required to do so. See, e.g., Barham v. Barham, 127 N.C. App. 20, 487 S.E.2d 774 (1997), aff'd per curiam, 347 N.C. 570, 494 S.E.2d 763 (1998); Mackins v. Mackins, 114 N.C. App. 538, 442 S.E.2d 352, disc. rev. denied, 337 N.C. 694, 448 S.E.2d 527 (1994). In this case, Defendant's motion to modify was filed at about the time that Lindsay, who was fifteen at the time, chose to stay in Raleigh with Defendant rather than spending the summer with Plaintiff in Chapel Hill as she had done in past years. As a consequence, the costs toDefendant to provide for her older daughter's reasonable needs increased. These facts would have permitted the trial court to exercise its discretion by modifying child support effective as of the date the motion to modify was filed. We cannot say, however, that the court abused its discretion in this respect. To do so, we would have to determine that the court's ruling on this issue “was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). We are not able, on this evidence, to so hold. Accordingly, this assignment of error is overruled.
Defendant's remaining assignments of error are without merit and are also overruled.
For the reasons stated herein, the 31 March 2005 order of the trial court is reversed with respect to the ruling on Defendant's motion to modify child support, and this case is remanded to the trial court for further proceedings in accordance with this opinion.
    Reversed and remanded.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).