Biggs v. Greer

• Court: North Carolina Court of Appeals
• Writing for the Court: JOHN.
• Citation: Biggs v. Greer, 136 N.C. App. 294, 524 S.E.2d 577 (N.C. App. 2000)
• Decision Date: 18 January 2000
• Docket Number: No. COA98-1253.
• Parties: Pamela (Greer) BIGGS, Plaintiff, v. Robert GREER, III, Defendant.

524 S.E.2d 577

136 NC App. 294

Pamela (Greer) BIGGS, Plaintiff, v. Robert GREER, III, Defendant.

No. COA98-1253.

Court of Appeals of North Carolina.

January 18, 2000.

Newsom, Graham, Hedrick and Kennon, P.A., by John R. Long, Durham, for plaintiff-appellee.

Rigsbee and Cotter, P.A., by William J. Cotter, Durham, for defendant-appellant.

JOHN, Judge.

Defendant appeals the trial court's order directing him to pay prospective and retroactive private school expenses. We affirm as to the former, but reverse the award of retroactive payments.

Relevant facts and procedural history include the following: Plaintiff and defendant married in 1973 and three children were born to the marriage. The parties separated on or about 17 December 1982, and Joshua and Kylah, the younger children (the children), remained in plaintiff's custody. Defendant subsequently commenced payment of child support through the Office of the Clerk of Superior Court in the amount of six hundred and twenty-five dollars ($625.00) per month.

On 29 September 1997, plaintiff filed a motion to increase defendant's child support payments, alleging increased medical and private secondary educational expenses for the children. The motion was heard before the Honorable Carolyn D. Johnson (Judge Johnson) 3 October 1997. At that time, both children attended Camelot Academy, a private secondary school, where Kylah, age seventeen, was an eleventh grader and Joshua, age nineteen, was a senior. Although Judge Johnson announced her ruling in open court following the hearing, she retired from the bench without entering a written order related thereto.

Thereafter, the Honorable Kenneth C. Titus (Judge Titus), based upon the recollections of counsel for plaintiff and defendant regarding the terms of Judge Johnson's decision, entered a written order (the Order) 19 March 1998, nunc pro tunc 3 October 1997. The Order included the following pertinent finding of fact:

13. The Court finds that the medical expenses and the [Camelot] school expenses are an extraordinary expense for the minor children.

The Order also contained the conclusion of law that there had been "a substantial and material change in circumstances warranting a modification of child support."

Based upon the foregoing, the trial court ordered in relevant part as follows:

2. The expenses incurred on behalf of the minor children ... for extraordinary expenses, shall be paid at the rate of one hundred fifty dollars ($150.00) per month, thereby making the defendant's child support obligation seven hundred seventy-five dollars ($775.00) per month. However, said ... [ ]$150.00[ ] a month shall be credited to ... extraordinary expenses, not child support.

3. The Court finds that the defendant is responsible for one-half of the educational expenses to date, and shall be responsible for one-half of the twenty-one thousand five hundred ninety-nine dollars ($21,599.00) and that ten thousand seven hundred ninety-nine dollars and fifty cents ($10,799.50) shall be paid to [plaintiff] who has paid all of said expenses.

4. Hereafter, each party shall equally be responsible for any and all school expenses relating to the minor children, and each party shall pay their share of expenses directly to ... any school that the children are attending....

Defendant timely appealed.

Defendant first contends "there is no competent evidence in the record to support a finding that private school was necessary for the children's welfare." Defendant's argument presupposes that such a finding was required in order for the expense of private school to be classified as an "extraordinary expense" under the Child Support Guidelines, 1999 Ann. R. N.C. 32 (the Guidelines). We conclude defendant's first argument is unfounded.

Child support orders entered by a trial court are accorded substantial deference by appellate courts and our review is limited to a "determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Under this standard of review, the trial court's ruling "will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id.

Pursuant to N.C.G.S. § 50-13.4(c)(1995), a trial court is authorized to order support payments in such amount as meets the "reasonable needs of the child[ren] for health [and] education." G.S. § 50-13.4(c); see Cauble v. Cauble, 133 N.C.App. 390, 394, 515 S.E.2d 708, 711 (1999) ("ultimate objective in setting awards for child support is to secure support commensurate with the needs of the children and the ability of the father [mother] to meet the needs") (citation omitted). To "compute the appropriate amount of child support," Hammill v. Cusack, 118 N.C.App. 82, 86, 453 S.E.2d 539, 542, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995) (citation omitted), the trial court must rely upon the Guidelines wherein presumptive amounts of child support are set forth, G.S. § 50-13.4(c).

If the trial court imposes the presumptive amount of child support under the Guidelines, it is

not ... required to take any evidence, make any findings of fact, or enter any conclusions of law "relating to the reasonable needs of the child for support and the relative ability of each parent to [pay or] provide support."

Browne v. Browne, 101 N.C.App. 617, 624, 400 S.E.2d 736, 740 (1991)(citing G.S. § 50-13.4(c)). However, upon a party's request that the trial court deviate from the Guidelines, G.S. § 50-13.4(c), or the court's decision on its own initiative to deviate from the presumptive amounts, see Child Support Guidelines ("[t]he Court may deviate from the Guidelines in cases where application would be inequitable"), the court must hear evidence and find facts related to the reasonable needs of the child for support and the parent's ability to pay, G.S. § 50-13.4(c).

Regarding treatment by the court of "extraordinary expenses," the Guidelines provide:

F. Extraordinary Expenses. The Court may make adjustments for extraordinary expenses and order payments for such term and in such manner as the Court deems necessary.... Payments for such expenses shall be apportioned in the same manner as the basic child support obligation and ordered paid as the Court deems equitable.

Other extraordinary expenses are added to the basic child support obligation. Other extraordinary expenses include:

(1) Any expenses for attending any special or private elementary or secondary schools to meet the particular educational needs of the child(ren)....

Child Support Guidelines (emphasis added).

"[D]etermination of what constitutes an extraordinary expense is ... within the discretion of the trial court," Mackins v. Mackins, 114 N.C.App. 538, 549, 442 S.E.2d 352, 359,disc. review denied, 337 N.C. 694, 448 S.E.2d 527 (1994). Based upon the Guideline language above, "the court may, in its discretion, make adjustments [in the Guideline amounts] for extraordinary expenses." Id. However, incorporation of such adjustments into a child support award does not constitute deviation from the Guidelines, but rather is deemed a discretionary adjustment to the presumptive amounts set forth in the Guidelines. See 29 Fam. L.Q. 775, 834 (1996)(citing Mackins, 114 N.C.App. at 548-50,442 S.E.2d at 358-59, as holding that "court's order that defendant pay his share of costs of tutoring, orthodontics, psychologists, and summer camp was not a deviation, but rather a discretionary determination to adjust the guideline amount for extraordinary expenses"). In short, absent a party's request for deviation, the trial court is not required to set forth findings of fact related to the child's needs and the non-custodial parent's ability to pay extraordinary expenses.

In the case sub judice, defendant does not quarrel with the trial court's determination that private school expenses for the children constituted "extraordinary expenses." However, defendant points to language in the Guidelines to the effect that ordering of private schooling as an extraordinary expense is proper when the court "deems" the expense "necessary." Defendant extrapolates from this provision a requirement that the court specifically find such costs were "necessary for the children's welfare." Defendant's assertion is unfounded.

Initially, as noted above, the trial court was under no obligation to render findings of fact because it did not deviate from the presumptive Guidelines, but rather adjusted the Guideline amounts to account for the extraordinary expense of private schooling. See G.S. § 50-13.4(c)("[i]f the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact ... that justify varying from the guidelines and the basis for the amount ordered"), and Mackins, 114 N.C.App. at 549, 442 S.E.2d at 359 (extraordinary expenses considered adjustment of presumptive Guideline amounts). In addition, the record contains no request by either party for a deviation from the Guidelines. G.S. § 50-13.4(c)("upon request of any party [for a deviation from the Guidelines], the Court shall ... find the facts relating to the reasonable needs of the child... and the relative ability of each parent to provide support" (emphasis added)). Finally, although the trial court was not required to set forth an explicit finding of fact that it "deemed" the children's private schooling expenses "necessary," we note the court remarked during the course of the hearing that, "considering the[ ] [children's] age[s]," the circumstance that both were behind in school and had experienced significant health problems "necessitated some—some special help in order to get them through school."

In addition, defendant's assertion that the children could have received necessary credits in public school is belied by the record which reveals neither child was making progress in public school, but instead progressively...