LEE COUNTY DEPARTMENT OF SOCIAL
SERVICES o/b/o JAN D. MARTIN,
Plaintiff-Appellee,
v. Lee County
No. 05 CVD 1035
THOMAS W. BARBEE,
Defendant-Appellant.
Beverly D. Basden, P.C., by Beverly D. Basden, for Plaintiff-
Appellee.
Staton, Doster, Post & Silverman, by Kevin Foushee, for
Defendant-Appellant.
McGEE, Judge.
Jan D. Martin (Plaintiff) and Thomas W. Barbee (Defendant)
were married on 25 April 1987 and had three children together.
Plaintiff and Defendant separated on 14 March 2000 and entered into
a marital settlement agreement on 11 December 2000. Pursuant to
this agreement, Defendant paid $600.00 per month in child support.
The Lee County Department of Social Services filed an action on
behalf of plaintiff on 22 November 2005 seeking an order requiring
Defendant to pay additional amounts in child support. The trial
court heard the matter on 6 January 2006 and entered an order on 30
January 2006 requiring defendant to pay $1,141.00 per month inchild support.
Defendant's sole assignment of error on appeal is that the
evidence presented at the hearing did not support the trial court's
inclusion in Defendant's income of an annual monetary gift of
$20,000 from his parents. With respect to this amount, the trial
court made the following findings of fact:
10. Plaintiff . . . informed the agency and
testified in court that while married to
. . . Defendant and for about the last five
years of the marriage [Defendant's] parents
provided [Plaintiff and Defendant] with checks
in the fall and summer in the amount of
$10,000 each. This totaled $40,000 per year.
11. Defendant denied that he received any
income from his parents since the date of
separation. He contended that his parents
refused to provide him with any sums after his
separation. This was not credible testimony.
12. [Plaintiff and Defendant] used the income
received from [Defendant's] parents to raise
their standard of living and used the funds to
pay marital bills, take trips and do other
things they would not have been able to afford
without these funds. The minor children
benefited [sic] from this increased income and
their standard of living was raised by these
gifts.
13. Gifts to a party are included in the
definition of gross income in the North
Carolina Child Support Guidelines. It is
appropriate to include $20,000 in gifts as
income for . . . Defendant.
Based on these findings, the trial court concluded that "[t]he
income from . . . Defendant' parents of $20,000 per year should be
included as income for . . . Defendant in addition to his other
income."
Defendant asserts that the trial court's concluding that thegift of $20,000 continued after Defendant's separation from
Plaintiff in 2000 was not supported by competent evidence. "In an
appeal from a judgment entered in a non-jury trial, our standard of
review is whether competent evidence exists to support the trial
court's findings of fact, and whether the findings support the
conclusions of law." Resort Realty of the Outer Banks, Inc. v.
Brandt, 163 N.C. App. 114, 116, 593 S.E.2d 404, 407-08, disc.
review denied, 358 N.C. 236, 595 S.E.2d 154 (2004).
Upon direct examination by the trial court, Plaintiff
testified that she and Defendant each received separate checks for
$10,000 in the fall and in the spring each year for the last five
or six years of their marriage. She further testified that these
gifts to her stopped when the marriage ended. When asked by the
trial court about whether Defendant continued to receive the gifts,
Plaintiff stated only "[i]t's my belief, yes. I can't prove it,
but it's my belief that it continues."
Aside from this statement, Plaintiff offered no other evidence
supporting her assertion. The only other evidence on this issue
was the following testimony of Defendant:
THE COURT: All right. And what is it you want to
say about the allegation that your
parents [gave] you a significant amount
of money during the course of the year?
DEFENDANT: My parents do not give me a significant
amount of money anymore. They did at the
time. What [Plaintiff] spoke was the
truth when we were married. We each did
receive checks for $10,000 apiece, but
since we were divorced, I no longer
receive that amount.
THE COURT: Why did they cut you off when you gotdivorced?
DEFENDANT: My father told me that he would not be
supporting me anymore and that he thought
I ought to stand on my own two feet and
take responsibility for myself and the
children on my own.
THE COURT: What made him say that? That doesn't
make a lot of sense if he was willing to
take care of you when you were married,
that he's going to cut the strings when
your whole family's gone.
DEFENDANT: Well, he doesn't cut me off. I come home
and visit. He has a house in New Jersey,
and we go and visit he and my mother[.]
The trial court found that Defendant's testimony was not
credible, and such a finding was well within its discretion.
However, such a finding does not relieve Plaintiff of her burden to
offer competent evidence to support her allegation. See Plott v.
Plott, 313 N.C. 63, 69, 326 S.E.2d 863, 867 (1985) (holding that it
is not the role of an appellate court to determine the weight and
credibility of the evidence "[i]f the record discloses sufficient
evidence to support the findings") (emphasis added). Plaintiff's
testimony constitutes no more than a mere allegation and we hold
that, standing alone, it is not competent evidence sufficient to
support the trial court's finding that Defendant received and
continued to receive the $20,000 gift. "Speculative assertions and
mere opinion evidence do not constitute competent evidence." MCC
Outdoor, LLC v. Town of Franklinton Bd. of Comm'rs, 169 N.C. App.
809, 815, 610 S.E.2d 794, 798, disc. review denied, 359 N.C. 634,
616 S.E.2d 540 (2005). Accordingly, those portions of the trial
court's order imputing the $20,000 gift income to Defendant must bereversed.
Reversed and remanded in part.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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