Atwell v. Atwell, 8426DC525

• Decision Date: 16 April 1985
• Docket Number: No. 8426DC525,8426DC525
• Citation: 74 N.C.App. 231,328 S.E.2d 47
• Court: North Carolina Court of Appeals
• Parties: Betty Young ATWELL v. Gary Hugh ATWELL.

Page 47

328 S.E.2d 47

74 N.C.App. 231

Betty Young ATWELL v. Gary Hugh ATWELL.

No. 8426DC525.

Court of Appeals of North Carolina.

April 16, 1985.

Ronald Williams, P.A., for defendant appellant.

No brief filed for plaintiff appellee.

BECTON, Judge.

I

We must determine whether the trial court's awards of child support and counsel fees were proper.

Plaintiff wife, Betty Young Atwell, and defendant husband, Gary Hugh Atwell, were married on 29 October 1976. One child was born of the marriage, Gary Michael, aged 6 at the time of the child support hearing. The parties separated in September 1983. The husband testified that he paid the wife $108 per month in child support from the time of separation until the time of the hearing.

On 17 November 1983 the wife filed a Complaint seeking alimony pendente lite, permanent alimony, custody and support of the minor child, the use and possession of the marital home, and counsel fees. In his Answer, the husband sought to have all relief denied the wife save custody and a reasonable amount of child support. Both parties submitted affidavits of financial standing and the husband also submitted his 1981 and 1982 tax returns.

A hearing was held in Mecklenburg County District Court on 28 February 1984. The trial court stated it would only hear evidence on the issue of child support, reserving the issue of alimony. The husband testified, inter alia, that he was a self-employed carpenter's helper, that it had been three years since he was employed full-time, and that he had earned $1,400 net profit between 1 January 1984 and the date of the hearing. He also testified that he was currently living with his parents in Tennessee.

The trial court entered an order awarding the wife custody, setting child support at $300 per month, and ordering the husband to pay counsel fees of $200. The court also awarded the wife use and possession of the marital home and the parties' 1977 Chevrolet. The husband appeals, assigning error to those portions of the order concerned with the awards of child support and counsel fees. For the reasons stated below, we agree with the husband that the trial court erred in making these awards. We therefore vacate the order in question, and remand the cause for entry of a proper order.

II

We turn first to the child support portion of the order.

The legal principles which govern the determination of child support have been frequently stated and summarized as recently as the Supreme Court's opinion in Plott v. Plott, 313 N.C. 63, --- - ---, 326 S.E.2d 863, 867-868 (1985) at 7-9. Briefly, under N.C.Gen.Stat. Sec. 50-13.4(c)(1984), "an order for child support must be based upon the interplay of the trial court's conclusions of law as to (1) the amount of support necessary to 'meet the reasonable needs of the child' and (2) the relative ability of the parties to provide that amount." Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980). These conclusions must be based upon factual findings sufficiently specific to indicate that the trial court took "due regard" of the factors enumerated in the statute, namely, 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." G.S. Sec. 50-13.4(c); Coble; Byrd v. Byrd, 62 N.C.App. 438, 303 S.E.2d 205 (1983).

These findings must, of course, be based upon competent evidence, and "[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, 300 N.C. at 712, 268 S.E.2d at 189. In short, the evidence must support the findings, the findings must support the conclusions, and the conclusions must support the judgment; otherwise, effective appellate review becomes impossible. Coble.

Applying these principles to the case before us, we discover that the order contains insufficient factual findings as to the incomes, estates, and present reasonable expenses of the parties upon which the trial court could have adequately determined the relative abilities of the parties to provide support. As to the parties' incomes, the court found that the wife has a net income of approximately $800 per month, and that the husband

is self-employed as a carpenter, ... and expects net profits of between $700.00 and $800.00 per month until he gets his business built up; further, that the [husband] has actually had net earnings of $1,400.00 as [a] result of being self-employed ... from January 1, 1984 through the date of this hearing [28 February 1984]. That the [husband] is capable of being employed on a regular and ongoing basis....

Although no error is assigned thereto, we note that the only evidence as to the wife's income appears in her affidavit, where she states that her net income is $650 per month, and thus the finding as to the wife's income is not supported by the evidence. The finding addressing the husband's income took into account his projected earnings, in addition to his actual earnings. This was improper. The general rule is that the ability of a party to pay child support is determined by that person's income at the time the award is made. Holt v. Holt, 29 N.C.App. 124, 223 S.E.2d 542 (1976). Only when there are findings based on competent evidence to support a conclusion that the supporting spouse or parent is deliberately depressing his or her income or indulging in excessive spending to avoid family responsibilities, can a party's capacity to earn be considered. Beall v. Beall, 290 N.C. 669, 228 S.E.2d 407 (1976); Whitley v. Whitley, 46 N.C.App. 810, 266 S.E.2d 23 (1980). The court made no such findings, and it therefore committed error in considering the husband's capacity to earn in computing his income.

The findings as to the parties' estates are also inadequate. See Newman v. Newman, 64 N.C.App. 125, 306 S.E.2d 540, disc. rev. denied, 309 N.C. 822, 310 S.E.2d 351 (1983) ("estates" refers to, inter alia, "savings; real estate holdings, including fair market value and equity; stocks; and bonds"). Although the court found that the parties owned a house as tenants by the entireties, with equity of $25,000, it failed to find the fair market value. It also found that there are "substantial family obligations outstanding, which are as reflected in the affidavits of the parties...." Both parties' financial affidavits contain detailed lists of debt obligations, specifying creditors and the dollar amount owed on each debt. Indeed, the husband's affidavit reflects debts totalling over $14,000. In our opinion, the trial court's broadly worded finding that the parties had incurred debts falls short of the specificity requirement for findings of fact in child support orders.

The trial court made the following findings as to the needs and expenses of the parties:

That the [wife's] fixed expenses for the maintenance of her household are approximately $861.00 per month.

That the [husband] presently lives with his parents in Burns, Tennessee and has monthly financial needs of approximately $475.00 per month.

These findings are insufficient.

The trial court failed to make any findings as to the wife's individual needs apart from fixed household expenses, although she itemized these needs, which included clothing and food expenses, in her affidavit. Furthermore, the $831 of fixed expenses was not divided into the amounts attributable to the wife, the minor child, and to the wife's two daughters from her previous marriage, who apparently reside with the wife. As to the husband, although the record supports the finding that the husband's monthly individual needs are approximately $475, the trial court failed to take his fixed expenses into account, which expenses the husband lists as $695 monthly. Although the husband testified, and the trial court found, that he...