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1. Child Support, Custody, and Visitation_ support_consideration of child's needs and
expenses_shared custody
The trial court did not abuse its discretion in a claim for additional child support and
adequately considered (taking as true findings to which error was not assigned) the child's needs,
plaintiff's share of those needs, and defendant's contribution to those needs.
2. Child Support, Custody, and Visitation_support_worksheet
Defendant's contention that the court should use a worksheet developed by his counsel
was moot where he did not argue that the formula used by the court was in error. Moreover, this
was a high income child support case for which a case by case approach is required.
3. Child Support, Custody, and Visitation_support_summer camp expenses
Defendant did not assign error to relevant findings in a child support case and did not
preserve for appeal an issue regarding summer camp expenses.
Tharrington Smith L.L.P., by Jill Schnabel Jackson,
for
plaintiff-appellee.
Charles H. Montgomery, for defendant-appellant.
ELMORE, Judge.
Defendant appeals the district court's 24 March 2006 order
requiring defendant to pay child support in the amount of
$1,745.00.
Plaintiff and defendant were married in 1987, and are the
parents of one daughter, Kristen, born 7 August 1991. The parties
separated on 15 September 2002.
On 27 June 2003, the partiesentered into a separation agreement providing for joint custody of
Kristen, with plaintiff having primary residential custody (the
agreement).
The agreement provides for defendant to pay $500.00 per month
in child support, half of all non-reimbursed medical expenses, and
half of all extraordinary child expenses upon which the parties
mutually agreed.
Defendant voluntarily increased his monthly child
support payments to $825.00 in September, 2005. The parties agreed
that the increased payments would be retroactive to the date of the
agreement. Defendant paid a lump sum representing the increased
amount for each intervening month.
Following the separation and divorce, plaintiff brought a
claim for additional child support. The hearing on that claim was
held on 15 December 2005. At the time of the hearing, each party's
net worth exceeded one million dollars. Additionally, both parties
maintained full-time employment and earned average monthly incomes
in excess of $10,000.00. The trial court's treatment of the case
using an above-the-guidelines, high income family standard was
therefore uncontested.
The trial court found that since the agreement, defendant's
income had increased substantially, while plaintiff's income had
increased by only
a small amount. Despite these financial changes,
the agreement split Kristen's expenses evenly between the parties.
Additionally, the trial court determined that Kristen's reasonable
needs were almost three times the amount covered by the agreement.
The trial court found that by presenting these changed financialcircumstances, plaintiff had effectively rebutted the presumption
that the child support amount agreed to in the agreement was
reasonable.
The trial court's findings of fact include an updated analysis
of Kristen's total reasonable needs while in plaintiff's care,
which totaled $3,206.85 per month. The court found that
plaintiff's pro rata share of the parties' gross income at the time
of the hearing was 45.6 percent; plaintiff's pro rata share of
Kristen's reasonable needs while in her custody was therefore
$1,462.00 per month. Per these calculations, the court ordered
defendant to pay the remaining $1,745.00 in monthly support for
Kristen as well as expenses incurred while Kristen is in his
custody. It is from this order that defendant appeals.
[1]
Defendant first contends that the trial court did not
properly consider Kristen's needs at the houses of both parents and
focused solely on her needs while in plaintiff's care.
Specifically, defendant notes that the trial court did not give him
an offset for the expenses he paid while Kristen was in his
custody. Moreover, defendant urges, the trial court erred in
determining that some of plaintiff's insurance expenses should be
considered as part of the shared expenses. Absent a clear abuse of
discretion, a judge's determination of what is a proper amount of
support will not be disturbed on appeal. Plott v. Plott, 313 N.C.
63, 69, 326 S.E.2d 863, 868 (1985).
Under N.C. Gen. Stat. § 50-13.4(c), child support must meet
the reasonable needs of the child. In determining the amount ofsupport, the court should consider the estates, earnings,
conditions, accustomed standard of living of the child and the
parties, the child care and homemaker contributions of each party,
and other facts of the particular case. N.C. Gen. Stat. § 50-
13.4(c) (2005).
In this case, defendant has not assigned error to the trial
court's findings of fact Nos. 11-18 (with the exception of the
inclusion of half of plaintiff's monthly insurance premium in
finding of fact No. 12). These findings of fact include a detailed
analysis of Kristen's reasonable needs while in both plaintiff's
and defendant's custody, as well as a finding that the amount in
the agreement was inadequate and therefore did not influence the
trial court's decision. Significantly, defendant does not assign
error to the overall determination of Kristen's reasonable needs in
finding of fact No. 14. Nor did defendant assign error to finding
of fact No. 17, which describes Kristen's monthly needs while in
defendant's custody. The finding also states, The reasonable
monthly expenses paid by Dale Pascoe . . . have been considered by
the [c]ourt in determining defendant's ability to pay an
appropriate amount of child support to plaintiff for the benefit of
the minor child.
Findings of fact to which no error is assigned are presumed
to be supported by competent evidence and are binding on appeal.
In re A.S., 181 N.C. App. 706, 709, 640 S.E.2d 817, 819 (2007)
(citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991)). Though defendant did assign error to the trial court'sfinding of fact No. 12, which included the insurance payments made
by plaintiff, defendant failed to assign error to the court's total
calculated reasonable expenses. Defendant does not assign error to
the overall determination of Kristen's reasonable needs while in
plaintiff's care, or plaintiff's reasonable share of those needs
(finding of fact No. 14). Additionally, defendant failed to assign
error to the finding of fact considering his contribution to
Kristen's needs while in his care (finding of fact No. 17)
.
Defendant failed to assign error to these findings of fact;
this Court is therefore bound to accept as true the information
therein.
In re A.S., 181 N.C. App. at 709, 640 S.E.2d at 819.
Accordingly, we hold that the trial court's consideration of
Kristen's needs, plaintiff's share of those needs, and defendant's
contribution to those needs was reasonable and adequate. Defendant
failed to show that the trial court abused its discretion; his
initial assignment of error is without merit.
[2] Defendant next contends that, on remand, the court should
use a modified version of the worksheet B analytical process to
determine the appropriate amount of child support. Defendant does
not argue that the formula used by the trial court constitutes
reversible error; he seems merely to suggest that a formula and
worksheet developed by his counsel should be used in future cases.
There are no grounds for remand in this case; this contention is
therefore moot.
Moreover, even if defendant assigned error to the methodology
employed by the trial court, we can discern no error in the trialcourt's determination process. There is no set formula for high-
income child support cases. N.C. Gen. Stat. § 50-13.4(c) (2005)
requires that the trial court follow the North Carolina Child
Support Guidelines when determining the appropriate amount of child
support to be paid in each case. N.C. Gen. Stat. § 50-13.4(c)
(2005).
In cases in which the parents' combined
adjusted gross income is more than $20,000 per
month ($240,000 per year), the supporting
parent's basic child support obligation cannot
be determined by using the child support
schedule.
In cases in which the parents' combined income
is above $20,000 per month, the court should,
on a case by case basis, consider the
reasonable needs of the child(ren) and the
relative ability of each parent to provide
support. The schedule of basic child support
may be of assistance to the court in
determining a minimal level of child support.
N.C. Child Support Guidelines 2005, Ann. R. N.C. 48. This case-by-
case standard for above-average income cases has been upheld
repeatedly
by this Court. See, e.g., Trevillian v. Trevillian, 164
N.C. App. 223, 225, 595 S.E.2d 206, 208 (2004). Accordingly, we
will not further address this assignment of error.
[3] Finally, defendant contends that the trial court erred by
ignoring the agreement regarding camp expenses. Defendant is
correct in asserting that under North Carolina case law the
provisions of a separation agreement are presumed just and
reasonable unless a party can rebut that presumption based on
evidence of a significant change in the child's reasonable needs.
Patky v. Patky, 160 N.C. App. 289, 305, 585 S.E.2d 404, 414-15(2003). However, defendant has failed to preserve this issue for
appeal.
Finding of fact No. 15 clearly states that the child's
reasonable needs are not equivalent to those contemplated in the
agreement: The Court finds by the greater weight of the evidence
that plaintiff has rebutted the presumption that the child support
amount in the Agreement is reasonable. Additionally, finding of
fact No. 13 outlines Kristen's reasonable individual needs and
includes a correction for the amount originally included in
plaintiff's affidavit requesting payment for the summer camp.
Defendant does not assign error to either of these findings of
fact; they are therefore binding on appeal. In re A.S., 181 N.C.
App. at 709, 640 S.E.2d at 819.
Accordingly, this assignment of
error is without merit, and the trial court's order for child
support in the amount of $1,745.00 is affirmed.
Affirmed.
Judges TYSON and GEER concur.
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